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Full text of "North Carolina Register v.8 no. 9 (8/2/1993)"

RBR/ KFM/ -7434-/. A2/HG1 



RECEIVED 



AUG 



1993 



IMI LIBRARY 



NORTH CAROLINA 

REGISTER 



IN TfflS ISSUE 



IN ADDITION 

Health Services 
NPDES Permit 



PROPOSED RULES 
Commerce 
Dental Examiners 

Environment, Health, and Natural Resources 
Human Resources 
Insurance 
Justice 
Physical Therapy Examiners 



COHi 

TITUl 11^ 



LIST OF RULES CODIFIED 



RRC OBJECTIONS 



RULES INVALIDATED BY JUDICIAL DECISION 



CONTESTED CASE DECISIONS 



ISSUE DATE: August 2, 1993 
Volumes • Issue 9 • Pages 709 - 792 



INFORMATTON ABOUT THE NORTH CAROLINA RFGTSTER AND ADMINLSTRATTVE CODE 



NORTH CAROLINA REGISTER 



TEMPORARY RULES 



TTie North Carolina Register is published twice a month and 
contains information relating to agency, executive, legislative and 
judicial actions required by or affecting Chapter 150B of the 
General Statutes. All proposed administrative rules and notices of 
public hearings filed under G.S. 150B-21.2 must be published in 
the Register. The Register will typically comprise approximately 
fifty pages per issue of legal text. 

State law requires that a copy of each issue be provided free of 
charge to each county in the state and to various state officials and 
institutions. 

The North Carolina Register is available by yearly subscription 
at a cost of one hundred and five dollars (S105.00) for 24 issues. 
Individual issues may be purchased for eight dollars (S8.00). 

Requests for subscription to the North Carolina Register should 
be directed to the Office of Administrative Hearings, 
P. 0. Drawer 27447, Raleigh, N. C. 2761 1-7447. 



Under certain emergency conditions, agencies may issue 
temporary rules. Within 24 hours of submission to OAH, the 
Codifier of Rules must review the agency's written statement of 
findings of need for the temporary rule pursuant to the provisions in 
G.S. 150B-21.1. If the Codifier determines that the findings meet 
the criteria in G.S. 150B-21.1, the rule is entered into the NCAC. If 
the Codifier determines that the findings do not meet the criteria, 
the rule is returned to the agency. The agency may supplement its 
findings and resubmit the temporary rule for an additional review 
or the agency may respond that it will remain with its initial 
position. The Codifier, thereafter, will enter the rule into the 
NCAC. A temporary rule becomes effective either when the 
Codifier of Rules enters the rule in the Code or on the sixth 
business day after the agency resubmits the rule without change. 
The temporary rule is in effect for the period specified in the rule or 
180 days, whichever is less. An agency adopting a temporary rule 
must begin rule-making procedures on the permanent rule at the 
same time the temporary rule is filed with the Codifier. 



ADOPTION AMENDMENT, AND REPEAL OF 
RULES 



NORTH CAROLINA ADMINISTRATIVE CODE 



The following is a generalized statement of the procedures to be 
followed for an agency to adopt, amend, or repeal a rule. For the 
specific statutory authority, please consult Article 2A of Chapter 
150B of the General Statutes. 

Any agency intending to adopt, amend, or repeal a rule must 
first publish notice of the proposed action in the North Carolina 
Register. The notice must include the time and place of the public 
hearing (or instructions on how a member of the public may request 
a hearing); a statement of procedure for public comments; the text 
of the proposed rule or the statement of subject matter; the reason 
for the proposed action; a reference to the statutory authority for the 
action and the proposed effective date. 

Unless a specific statute provides otherwise, at least 15 days 
must elapse following publication of the notice in the North 
Carolina Register before the agency may conduct the public 
hearing and at least 30 days must elapse before the agency can take 
action on the proposed rule. An agency may not adopt a rule that 
differs substantially from the proposed form published as part of 
the public notice, until the adopted version has been published in 
the North Carolina Register for an additional 30 day comment 
period. 

When final action is taken, the promulgating agency must file 
the rule with the Rules Review Commission (RRC). After approval 
by RRC, the adopted rule is filed with the Office of Administrative 
Hearmgs(OAH). 

A rule or amended rule generally becomes effective 5 business 
days after the rule is filed with the Office of Administrative 
Hearings for publication in the North Carolina Administrative Code 
(NCAC). 

Proposed action on rules may be withdrawn by the promulgating 
agency at any time before final action is taken by the agency or 
before filing with OAH for publication in the NCAC. 



The North Carolina Administrative Code (NCAC) is a 
compilation and index of the administrative rules of 25 state 
agencies and 38 occupational licensing boards. The NCAC 
comprises approximately 15,000 letter size, single spaced pages of 
material of which approximately 35% of is changed annually. 
Compilation and publication of the NCAC is mandated bv G.S. 
150B-21.18. 

The Code is divided into Titles and Chapters. Each state agency 
is assigned a separate title which is further broken down by 
chapters. Title 21 is designated for occupational licensing boards. 

The NCAC is available in two formats. 

(1) Single pages may be obtained at a minimum cost of 
two dollars and 50 cents (S2.50) for 10 pages or less, 
plus fifteen cents (SO. 15) per each additional page. 

(2) The full publication consists of 53 volumes, totaling in 
excess of 15,000 pages. It is supplemented monthly 
with replacement pages. A one year subscription to the 
full publication including supplements can be 
purchased for seven hundred and fifty dollars 
(S750.00). Individual volumes may also be purchased 
with supplement service. Renewal subscriptions for 
supplements to the initial publication are available. 

Requests for pages of rules or volumes of the NCAC should be 
directed to the Office of Administrative Hearings. 



CITATION TO THE NORTH CAROLINA 
REGISTER 

The North Carolina Register is cited by volume, issue, page 
number and date. 1:1 NCR 101-201, April 1, 1986 refers to 
Volume 1, Issue 1, pages 101 through 201 of the North Carolina 
Register issued on April 1, 1986. 



FOR INFORMATION CONTACT: Office of 
Administrative Hearings, ATTN: Rules Division, P.O. 
Drawer 27447, Raleigh. North Carolina 27611-7447, (919) 
733-2678. 



NORTH 
CAROLINA 
REGISTER 




Office of Administrative Hearings 

P. O. Drawer 27447 

Raleigh, North Carolina 27611-7447 

(919) 733-2678 



Julian Mann III, 

Director 
James R. Scarcella St., 

Deputy Director 
Molly Masich, 

Director ofAPA Services 



Staff: 

Ruby Creech, 

Publications Coordinator 
Teresa Kilpatrick, 

Editorial Assistant 
Jean Shirley, 

Editorial Assistant 



ISSUE CONTENTS 



I. IN ADDITION 

Health Services 709 

NPDES Permit 710 

II. PROPOSED RULES 
Commerce 

Alcoholic Beverage Control 

Commission 711 

Environment, Health, and 
Natural Resources 

Health Services 762 

Human Resources 

Medical Assistance 712 

Social Services 733 

Insurance 
Medical Database Commission . . 737 

Justice 
Alarm Systems Licensing Board 761 
Sheriffs' Education and Training 
Standards Commission 738 

Licensing Boards 

Dental Examiners 763 

Physical Therapy Examiners . . . 767 

III. LIST OF RULES CODIFIED ... 769 

IV. RRC OBJECTIONS 776 

V. RULES INVALIDATED BY 

JUDICIAL DECISION 779 

VI. CONTESTED CASE DECISIONS 

Index to ALJ Decisions 780 

Text of Selected Decisions 
93 ABC 0087 785 

VII. CUMULATIVE INDEX 790 



NORTH CAROLINA REGISTER 

Publication Schedule 

(January 1993 - December 1993) 







Last Day 


Earliest 


F^rliest 










for Elec- 


Date for 


Date for 


Last Day 


♦Earliest 


Issue 


Last Day 


tronic 


Public 


Adoption 


to Submit 


Effective 


Date 


for Filing 


Filing 


Hearing 


by Agency 


to RRC 


Date 


if^j^^i^jfi^ 


>{<>i<>f<>i<>i<>i<>i< 


****>i<'i<>i< 


******* 


******* 


******* 


******* 


01/04/93 


12/09/92 


12/16/92 


01/19/93 


02/03/93 


02/20/93 


04/01/93 


01/15/93 


12/22/92 


12/31/92 


01/30/93 


02/14/93 


02/20/93 


04/01/93 


02/01/93 


01/08/93 


01/15/93 


02/16/93 


03/03/93 


03/20/93 


05/03/93 


02/15/93 


01/25/93 


02/01/93 


03/02/93 


03/17/93 


03/20/93 


05/03/93 


03/01/93 


02/08/93 


02/15/93 


03/16/93 


03/31/93 


04/20/93 


06/01/93 


03/15/93 


02/22/93 


03/01/93 


03/30/93 


04/14/93 


04/20/93 


06/01/93 


04/01/93 


03/11/93 


03/18/93 


04/16/93 


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05/20/93 


07/01/93 


04/15/93 


03/24/93 


03/31/93 


04/30/93 


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07/01/93 


05/03/93 


04/12/93 


04/19/93 


05/18/93 


06/02/93 


06/20/93 


08/02/93 


05/14/93 


04/23/93 


04/30/93 


05/29/93 


06/13/93 


06/20/93 


08/02/93 


06/01/93 


05/10/93 


05/17/93 


06/16/93 


07/01/93 


07/20/93 


09/01/93 


06/15/93 


05/24/93 


06/01/93 


06/30/93 


07/15/93 


07/20/93 


09/01/93 


07/01/93 


06/10/93 


06/17/93 


07/16/93 


07/31/93 


08/20/93 


10/01/93 


07/15/93 


06/23/93 


06/30/93 


07/30/93 


08/14/93 


08/20/93 


10/01/93 


08/02/93 


07/12/93 


07/19/93 


08/17/93 


09/01/93 


09/20/93 


11/01/93 


08/16/93 


07/26/93 


08/02/93 


08/31/93 


09/15/93 


09/20/93 


11/01/93 


09/01/93 


08/11/93 


08/18/93 


09/16/93 


10/01/93 


10/20/93 


12/01/93 


09/15/93 


08/24/93 


08/31/93 


09/30/93 


10/15/93 


10/20/93 


12/01/93 


10/01/93 


09/10/93 


09/17/93 


10/16/93 


10/31/93 


11/20/93 


01/04/94 


10/15/93 


09/24/93 


10/01/93 


10/30/93 


11/14/93 


11/20/93 


01/04/94 


11/01/93 


10/11/93 


10/18/93 


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12/01/93 


12/20/93 


02/01/94 


11/15/93 


10/22/93 


10/29/93 


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12/15/93 


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02/01/94 


12/01/93 


11/05/93 


11/15/93 


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12/31/93 


01/20/94 


03/01/94 


12/15/93 


11/24/93 


12/01/93 


12/30/93 


01/14/94 


01/20/94 


03/01/94 



* The "Earliest Effective Date" is computed assuming that the agency follows the 
publication schedule above, that the Rules Review Commission approves the rule at 
the next calendar month meeting after submission, and that RRC delivers the rule to 
the Codifier of Rules five (5) business days before the 1st business day of the next 
calendar month. 



IN ADDITION 



I 



I his Section contains public notices that are required to be published in the Register or have been 
approved by the Codifier of Rules for publication. 



TITLE 15A - DEPARTMENTT OF ENVIRONMENT, HEALTH, AND 
NATURAL RESOURCES 

COMMISSION FOR HEALTH SERVICES 

Notice of Intent to Adopt a Temporary Rule Amendment 

J\otice is hereby given that the EHNR-Convnission for Health Services intends to amend DETERMINATION 
OF FINANCIAL ELIGIBILITY cited as ISA NCAC24A .0202 in a temporary action. Eff. August 9. 1993, For 
a Period of 180 Days or Until the Permanent Rule Becomes Effective, Whichever is Sooner. 

1 he Commission for Health Services will decide on the proposed temporary amendment to establish income 
scales at its regularly scheduled meeting on August 4, 1993. This meeting starts at 10:00 a.m. and will be 
held in the Norton Board Room, Cooper Memorial Health Building - 6th Floor, 225 N. McDowell St., 
Raleigh, NC 







I 



8:9 



NORTH CAROLINA REGISTER 



August 2, 1993 



709 



IN ADDITION 



STATE OF NORTH CAROLINA 

ENVIRONMENTAL MANAGEMENT COMMISSION 

POST OFFICE BOX 29535 

RALEIGH, NORTH CAROLINA 27626-0535 

PUBLIC NOTICE OF INTENT TO ISSUE STATE GENERAL NPDES PERMIT 

Public notice of intent to issue a State National Pollutant Discharge Elimination System (NPDES) General 
Permit for Point Source Discharges associated with the following activity: 

1. NPDES General Permit No. NCG550000 for the point source discharge of domestic 

wastewater associated with single family residences and other similar discharges. 
On the basis of preliminary staff review and application of Article 21 of Chapter 143 of the General Statutes 
of North Carolina, Public Law 92-500 and other lawful standards and regulations, the North Carolina 
Environmental Management Commission proposes to issue State NPDES General Permits for the discharges 
as described above. 

INFORMATION: Copies of the draft NPDES General Permit and Fact Sheet concerning the draft Permit is 
available by writing or calling: 

Ms. Coleen Sullins, P.E., Supervisor 

NPDES Permits Group 

Water Quality Section 

N.C. Division of Environmental Management 

P.O. Box 29535 

Raleigh, North Carolina 27626-0535 

Telephone (919) 733-5083 
Persons wishing to comment upon or object to the proposed determinations are invited to submit their 
comments in writing to the above address no later than September J_i 1993 . All comments received prior to 
that date will be considered in the final determination regarding permit issuance. A public meeting may be 
held where the Director of the Division of Environmental Management finds a significant degree of public 
interest in any proposed permit issuance. 

The draft Permit, Fact Sheet and other information are on file at the Division of Environmental Management, 
512 N. Salisbury Street, Room 925-D, Archdale Building, Raleigh, North Carolina. They may be inspected 
during normal office hours. Copies of the information on file are available upon request and payment of the 
costs of reproduction. All such comments and requests regarding this matter should make reference to Permit 
Number NCG550000 - Single Family Residences. 



Date: July 16, 1993 A. Preston Howard, Jr., P.E., Director 

Division of Environmental Management 



710 8:9 NORTH CAROLINA REGISTER August 2, 1993 



PROPOSED RULES 



TITLE 4 - DEPARTMENT OF COMMERCE 

Notice is hereby given in accordance with G.S. 150B-21.2 that the N.C. Alcoholic Beverage Control 
Commission intends to amend rule cited as 4 NCAC 2R . 1502. 

1 he proposed effective date of this action is November 1, 1993. 

1 he public hearing will be conducted at 10:00 a.m. on September 17, 1993 at the ABC Commission Hearing 
Room, 3322 Gamer Road, Raleigh, N. C. 

Ixeasonfor Proposed Action: To raise mark-up percentage for profit for local ABC boards, as authorized 
by G.S. 18B-804(b)(3), to help offset rising costs and stagnant sales volume. 

(comment Procedures: Written comments and arguments should be submitted prior to September 17, 1993 
to the ABC Commission, P. O. Box 26687, Raleigh, NC 2761 1-6687. Persons desiring to speak at the hearing 
are requested to notify the Administrator prior to September 1 7. 

Piscal Note: This Rule affects the expenditures or revenues of local funds. A fiscal note was submitted to 
the Fiscal Research Division on July 1, 1993, OSBM on July 1 , 1993, N. C. League of Municipalities on July 
1 , 1993, and N.C. Association of County Commissioners on July 1, 1993. 

CHAPTER 2 - ALCOHOLIC BEVERAGE CONTROL COMMISSION 

SUBCHAPTER 2R - ORGANIZATIONAL RULES: POLICIES AND PROCEDURES 

SECTION .1500 - PRICING OF SPIRITUOUS LIQUOR 

.1502 MARKUP FORMULA 

(a) On every delivered case of spirituous liquors, there is to be added a 77.5250 78.8400 percent markup, 
which is derived by the following formula: (x) equals the base price of the case, including freight and bailment 
charges. TTiirty Five Thirty-six hundredths percent equals the markup allowed local boards; therefore, 
1.3500(x) 1.3600(x) equals the delivered case cost plus the 35.00 36.00 percent local markup, or the "retail 
price," excluding all taxes. 

Example: .350000(x) .360000(x) local markup 

■ 37 8 000(x) .380800(x) state tax [28% of 1.3500(x) 1.36Q0(x) 1 

■0 4 7250(x) .047600(x) state tax retained locally [3.5% of 1.3500(x) L3600£2Ll] 

.775250(x) .788400 total markup 

(b) The selling price of spirituous liquor, which includes the cost of goods, local markup and all taxes, is 
derived by following these steps: 

(1) Determine the subtotal case cost by adding base case cost, freight and bailment together; 

(2) Multiply the subtotal case cost by 1.775250 1.788400 , to four decimals; 

(3) Add the bailment surcharge as determined by the commission; 

(4) Divide the result by the number of bottles in the case; 

(5) Add five cents ($.05) rehabilitation tax [Add one cent ($.01) for bottles 50 ml. or less]; 

(6) Add five cents ($.05) for the local board charge [Add one cent ($.01) for bottles 50 ml. or less]; 

(7) Round the result to an integer evenly divisible by five cents ($.05). The breaking point is one cent 
($.01), 1 mill; the mill is underlined. 

(A) If cent equals $ .00, it remains $ .00; 

(B) If cent equals $ .05, it remains $ .05; 

(C) If cent equals $ .010, (mill is 0), round downward to $ .00; 



8:9 NORTH CAROLINA REGISTER August 2, 1993 711 



PROPOSED RULES 



(D) If cent equals $ .OH, (if mill is 1-9), round upward to $ .05; 

(E) If cent equals $ .060, (mills is 0), round downward to $ .05; 

(F) If cent equals $ .061, (if mill is 1-9), round upward to $ .10; 

(G) If cent equals $ .411, -42, .43, .44, round upward to $ .45; 
(H) If cent equals $ .461, -47, .48, .49, round upward to $ .50; 

(8) The result is the retail selling price per bottle. 



Statutory Authority G.S. 18B-203(a)(3); 18B-207; 18B-804. 

TITLE 10 - DEPARTMENT OF 
HUMAN RESOURCES 



SUBCHAPTER 26H - REIMBURSEMENT 
PLANS 



l\otice is hereby given in accordance with G.S. 
150B-21.2 that the DHR/Division of Medical 
Assistance intends to adopt rules cited as 10 NCAC 
26H . 0305 - . 0309 and amend rules cited as . 0301 
- .0304. 

1 he proposed effective date of this action is 
November 1, 1993. 

1 he public hearing will be conducted at 1:30 
p.m. on September 1 , 1993 at the North Carolina 
Division of Medical Assistance, 1985 Umstead 
Drive. Room 132. Raleigh. NC 27603. 

Jxeason for Proposed Action: Rules necessary to 
establish more reasonable reimbursement based on 
extensive review by Division of Medical Assistance. 
It's also much more detailed on what are allow- 
able costs and proper procedures for Division of 
Medical Assistance. 



SECTION .0300 - ICF-MR 
PROSPECTIVE RATE PLAN 

.0301 PAYMENT FOR SERVICES - 

PROSPECTIVE REIMBURSEMENT 
PLAN FOR ICF-MR FACILITIES 

Beginning — Octob e r, — W^4 — Interm e di ate — Care 
Faciliti e s — M e ntal R e tardation (ICF MR) ohall bo 
r e imburs e d — proopootis' e ly — as — provid e d — m — Rul e 
.0303 of this Section. All certified intermediate 
care facilities ; mentally retarded (ICF-MR) partic- 
ipating in the North Carolina Medicaid Program 
are reimbursed on a prospective basis as set forth 
hereunder, except that state-operated facilities shall 
be reimbursed their reasonable and allowable costs 
in accordance with the Medicare principles of 
reimbursement and with the applicable provisions 
of this plan. TTiis plan is developed in accordance 
with the requirements of 42 CFR 447 Subpart C ; 
Payment for Inpatient Hospital and Lonp-Term 
Care Facility Services. Providers shall comply 
with all federal regulations and with the provisions 
of this plan. 



Lyom/nent Procedures: Written comments con- 
cerning these rules must be submitted by Septem- 
ber 1, 1993. to: Division of Medical Assistance. 
1985 Um^itead Drive. Raleigh. NC 27603 ATTN: 
Clarence Ervin. A PA Coordinator. Oral comments 
may be presented at the hearing. In addition, a 
fiscal impact statement is available upon written 
request from the same address. 

hidiJor's Note: These Rules were filed as tempo- 
rary adoptions and amendments effective July 8, 
1993 for a period of 180 days or until the perma- 
nent rule becomes effective, whichever is sooner. 

CHAPTER 26 - MEDICAL ASSISTANCE 



Authority G.S. W8A-25(b); 108A-54; 108A-55: 
S.L. 1985.C. 479, s.86;42 C.F.R. 447, Subpart C 

.0302 REPORTING REQUIREMENTS 

(a) Each facility that r e c e iv es paym e nts from th e 
North Carolina Medicaid Program must prepare 
and submit a r e port of its costs and oth e r financial 
information relat e d to r e imburs e m e nt annually. 
Th e r e port mu s t includ e costs from a fiscal p e riod 
b e ginning on July 1 and e nding on Jun e 30 and 
must b e s ubmitt e d to the state on or before the 
S e pt e mber 30 that imm e diat e ly follows th e June 30 
year e nd. — A n e w provid e r mu s t s ubmit a r e port 
for th e p e riod b e ginning with th e dat e of c e rtifioa 
tion and e nding on Jun e 30. — Faciliti e s that file 
r e ports aft e r th e du e dat e will b e charg e d a p e nalty 
of up to fiv e hundred dollars ($500.00) p e r day for 
e ach day aft e r S e pt e mb e r 30 that th e r e port is 
d e linquent. — Th e Divi s ion of M e dical A ss i s tanc e 



712 



8:9 



NORTH CAROLINA REGISTER 



August 2, 1993 



PROPOSED RULES 



may extend tho d e adlin e for filing tho report if, in 
its viow, good oaus e e xiots for th e d e lay. — Pef 
provid e rs with oost r e porting p e riods e nding on a 
date othor than Juno 30 whioh w e r e enroll e d in th e 
Medicaid program prior to July — \-, — 19 8 6, this 
provision shall booom e e ff e ctive for th e fiscal 
period ending Juno 30, 19 8 8. 

(b) Thos e oost reports shall d e tail tho providers 
oost for the e ntir e r e porting p e riod, or for th e 
period of participation in tho plan if less than a full 

oost r e porting y e ar, for allowabl e costs. ¥be 

allowable r e asonable, and n e c e ssary costs of any 
sorvio e o are d e t e rmined in aooordano e with r e gula 
tions as defined in th e HIM 15 manual, and adopt 
ed — by — r e fer e no e — pursuant — te — NCGS — 150B 
1 4 (a)(2)(o), e stablishing th e m e thod or methods to 
bo us e d and the it e ms includ e d. 

(c) jMlowabl e oosts will b e r e corded on th e basis 
of g e nerally aoo e pt e d accounting principl e s using 
tho accrual — method of accounting e xcept that 
governmental institutions will hav e th e option of 
using th e accrual or oaah — m e thod of aooounting. 

(d) Each oost report will b e v e rified by th e state 
ag e noy — or it s — roprosontativ e — for oomplotoness, 
accuracy — afid — reasonableness — through — a — desk 
revi e v i '. — Bosk reviews ar e to b e compl e t e d within 
six months from tho date of submission. — A desk 
audit or field audit of th e oost r e port will b e p e r 
formed as r e quir e d. — All oost r e ports will b e d e sk 
r e vi e w e d in aooordano e with standard proc e dur e s. 
On sit e audits will bo perform e d in aooordano e 
with — applicabl e — state — aed — f e d e ral — lews — and 
r e gulations. 

^e) — Provid e rs, with th e prior approval of th e 
Division of M e dical Assistance, may fil e joint or 
combin e d oost reports for multipl e facilities if 
thos e faciliti e s are und e r common own e rship or 
control, op e rat e as a r e asonably coh e r e nt unit 
(e.g.. share staff or other resources), — shar e a 
common management and aooounting structur e 
( e .g.. singl e home office), and are in reasonably 

olooo g e ographic proximity. The Division of 

Medical AssiBtanoo shall assign a single common 

per diem rat e to all th e faciliti e s in e ach group that 

files a singl e combined oost report. 

(a) Financial reports shall include the following: 

(1) Budget reports: Each provider shall 

include appropriate budget information 

in its application for an initial rate for a 

new facility: 

(A) The budget should reflect the project- 
ed annual operating results of each of 
the two years subsequent to the com- 
mencement of operating said facility. 

(B) The budget information used to sup- 



port the Certificate of Need award 
shall be provided to the Division of 
Medical Assistance on or before 30 
days prior to the enrollment of said 
facility by the Medicaid program. 
(C) Budgets are not deemed to be appro- 
priately filed unless they are properly 
prepared, in accordance to guidelines 
established by the Division of Medical 
Assistance. 
(2) Cost reports: Each facility that receives 
payments from the North Carolina 
Medicaid Program shall prepare and 
submit a separate annual cost report of 
its costs, a working trial balance related 
to reimbursement, and other financial 
information as requested by the Divi- 
sion of Medical Assistance. Providers 
that have an approved combined uni- 
form rate in accordance with Rule 
.0304 Paragraph (n) of this reimburse- 
ment plan shall file a combined cost 
report that is su pported by the individu- 
al facility cost reports. For these pro- 
viders, the combined cost report should 
be filed with the Division of Medical 
Assistance Audit Section while the 
individual facility cost reports should be 
filed with the Division of Medical 
Assistance Rate Setting Section. 

(A) The cost report shall cover a 12 
month period, from July j_ to the 
following June 30. unless another 
time frame is specified by the Divi- 
sion of Medical Assistance. 

(B) The cost report shall be submitted to 
the state on or before the September 
30 that immediately follows the June 
30 year end. The Division of Medi- 
cal Assistance may grant an extension 
of time of up to 30 days for filing the 
cost report, upon showing of just 
cause in writing by the provider. 

(C) For new facilities a cost report shall 
be submitted for the period beginning 
with the date of certification and 
ending on the following June 30. 

(D) The cost report shall be submitted on 
the medium and in the format based 
on the Chart of Accounts specified by 
the Division of Medical Assistance. 
All costs shall be shown on the cost 
reports in accordance with guidelines 
established by the Division of Medical 
Assistance. A cost report that does 



8:9 



NORTH CAROLINA REGISTER 



August 2, 1993 



713 



PROPOSED RULES 



not meet the requirements of the 
Division of Medical Assistance is 



141 



ID 



deemed not to be filed. 
Currently filed cost reports 



shall 



reflect the decisions and judgments 
expressed by the Division of Medical 
Assistance auditors on previous cost 
reports. 

(F) All related organizations shall file a 
Medicaid cost statement identifying 
their costs, adjustments to costs, and 
allocation of costs along with the ICF- 
MR facility's cost report. A home 
office, or parent company, shall be 
recognized as a related organization. 
Auditable records to support these 
costs shall be made available to the 
Division of Medical Assistance and its 
designated contract auditors. Undoc- 
umented costs shall be disallowed for 
Medicaid reimbursement. 

(G) Cost reports should clearly identify 
related party transactions. Failure to 
do so may result in the related cost 
being disallowed for Medicaid reim- 
bursement purposes. 

(b) Additional information reporting require- 
ments for facilities shall include, but not be limited 
to. the following: 

(1) Each facility providing day treatment 
services shall be required to submit, in 
conjunction with the cost report, a 
separate report itemizing the actual 
expense attributable to the provision of 
day treatment services and the actual 
number of client days associated with 
said expense. Said report shall be in 
the format approved by the Division of 
Medical Assistance. 

(2) Each provider operating a facility, upon 
the request of the Division of Medical 
Assistance, shall submit statistical data 
and other information relevant to the 
administration and operation of said 
facility. Such reports shall be submit- 
ted within the time frames authorized in 
the request. 

(3) Each provider operating a facility shall 
file with the Division of Medical Assis- 
tance, in conjunction with the annual 
cost report, a separate listing of all 
clients who were served during the 
period covered by the cost report. Said 
report shall be in the format approved 
by the Division of Medical Assistance. 



15} 



Each provider that issues an annual 
report to its shareholders shall file a 
copy of said report with the Division of 
Medical Assistance. Said report shall 
be filed within 30 days of its issuance 
to the shareholders. 

Each provider that has a compensatory 
stock option plan shall file a copy of 
said plan with the Division of Medical 
Assistance, within 30 days of ks imple- 
mentation. 



16} 



A provider shall file an information 
report with the Division of Medical 
Assistance within 30 days of receiving 
notification from either the North Caro- 
lina Department of Revenue or the 
Internal Revenue Service that items, 
previously reported and allowed on a 
cost report, have been disallowed on 
the provider's associated tax return. 
(c) Requirements for certification of financial 
reports. 

Each provider that operates a facility 
shall complete the required financial 
reports in accordance with the follow- 
ing rules and in the order of priority 
stated: 



m 



lAl 



(B) Costs 



Cost shall be represented in accor- 
dance with the specific provisions of 
the plan as set forth in this Rule. 

shall be reported in 
the Medicare 



conformance 



be 
with 



Provider Reimbursement Manual, 



HCFA 15. which is incorporated by 
reference with subsequent changes 
and amendments pursuant to G.S. 
150B-14(a)(2)(C). Said manual is 
commonly referred to as the HIM- 15 
manual. 

(C) Costs shall be reported in 
conformance with generally accepted 
accounting principles. 

(D) Governmental institutions have the 
option of using the accrual or cash 
method of accounting. 

(2) Cost reports prepared for facilities shall 
be certified for their compliance with 
Subparagraph (c)(1) of this Rule by the 
provider's executive director or 
designated officer. 

(3^ Budget reports prepared for facilities 
shall be certified for their fair 
representation of anticipated 
disbursements and receipts related to 
the Medicaid ICF-MR program by the 



714 



8:9 



NORTH CAROLINA REGISTER 



August 2, 1993 



PROPOSED RULES 



provider's executive 
designated officer. 



director or 



(d") Requirements for the revision of financial 
reports shall include the following: 

(1) In the event the Division of Medical 



fflay — be — mad e — te — th e s e — base — year — costs — te 
Qooommodat e chang e s in applicabl e f e d e ral and 
stat e laws or r e gulations. 

{b) — The p e r di e m rate for each provid e r in the 
bas e y e ar shall b e d e termin e d by dividing th e total 
allowable costs in that y e ar by th e total actual 
number of pati e nt days. 



Assistance determines a cost report 

does not meet the requirement of the 

Division of Medical Assistance during 

a detailed review, the provider shall 

have 30 days from the date of said 

notification to submit a revised cost factors for e ach — int e rv e ning y e ar comput e d 

report or additional data. Such revised 

data or report shall be certified by the 

provider's executive director or 



(e) Th e bas e y e ar p e r di e m rat e for e ach 

provider will b e inflat e d from th e bas e year to the 
year in which th e rat e will apply using inflation 



i3i 



£3) 



designated officer. 

In the event that the provider discovers 
that a report submitted to the Division 
of Medical Assistance is incomplete, 
inaccurate or incorrect the provider 
shall immediately notify the Division of 
Medical Assistance that such error(s) 
exist. The provider shall have 30 days 
from the date of said notification to 
submit a revised report or additional 
data. Such data or report shall meet the 
certification requirements of the report 
being corrected. 

Failure to file the corrected reports on 
a timely basis in accordance to either 
Subparagraph (d)(1) or £2} of this Rule 
shall result in the related report being 
considered not filed and subject to the 
provisions under this Rule related to the 
failure to file said reports. However. 
the Division of Medical Assistance may 
grant an extension of time of up to 30 
days to file said corrected reports, upon 
the showing of just cause by the 
provider in writing. 



Authority G.S. 108A-25(b); 108A-54; 108A-55; 
S.L. 1985, c. 479. s.86; 42 C.F.R. 447. Subpart 
C. 



.0303 REQUIREMENTS FOR FINANCIAL 
RECORDS 

(a) Prosp e ctiv e rat e s for e ach ICF MR provid e r 
shall b e d e t e rmin e d annually to b e e ff e ctiv e for a 
12 month p e riod b e ginning July 1 and e nding th e 
following Jun e 30. — Thes e rat e s shall b e d e rived 
from actual cost data from a bas e y e ar to b e 
s e l e ct e d by th e state presented in cost r e ports 
submitt e d to and audit e d by th e stat e ag e ncy. Th e 
y e ar to which this cost r e port appli e s shall bo 
known ao th e bas e y e ar. — Appropriate adjustments 



-as 
follows: 

fi^ Cost data from th e base year cost 

r e ports will b e aggr e gated to d e t e rmin e 
th e proportion (p e rcent of total) of cost 
in e ach of th e following oatogorios: 
{A) — Labor; 
{B) — Oth e r Op e rating; 
(€) — Capital which includ e s the cost for 
us e or own e rship of physical plant 
and movabl e e quipm e nt. 

(S) Inflation rat e s for e ach category will be 

e stablish e d using official e stimates of 
inflation — provided — by — the — North 

Carolina Offic e — ef — Budget — and 

Manag e m e nt for th e y e ar in which the 
rat e shall apply. 
(A) — Labor costs shall b e inflated by the 
estimate of th e incr e as e in Av e rag e 
Annual — S e rvic e — Wages — m — North 
Carolina. — adjust e d — for any — sp e cial 
factors r e lat e d to ICF MR p e rsonn e l, 
how e v e r, salari e s for all p e rsonnel 
shall — be — limit e d — te — lev e ls — ef 
comparabl e positions in state own e d 
faciliti e s or l e v e ls sp e cifi e d by th e 
Dir e ctor of th e Divi s ion of M e dical 
Assistanc e ; 
(B) — Oth e r costs shall be inflat e d by th e 
estimate of the Implicit Price D e flator 
for th e U. S. Gross National Product; 
however, manag e m e nt f ee s shall b e 
limit e d — te — a — stHB — equal — te — seven 
p e rc e nt of th e maximum ICF rat e in 
th e stat e during th e curr e nt fiscal 



(€) — Capital cost shall not b e inflat e d. 



(^) Rat e s d e t e rmin e d in 10 NCAC 26H 

.0303(o)(2) will b e multipli e d tim e s the 
p e rcentag es d e t e rmin e d in — 10 NCAC 
26H .O303(o)(l) to obtain a w e ight e d 
inflation rate for e ach cat e gory' of cost. 

^4) The weighted rates determin e d in — tO 

NCAC 26H .0303(c)(3) will b e add e d 
to obtain th e composit e inflation rate. 



8:9 



NORTH CAROLINA REGISTER 



August 2, 1993 



715 



PROPOSED RULES 



f§-) No inflation factor for any provid e r will 

exc<!43d th e maximum amount p> e rmitt e d 
for that provid e r by federal or state law 
or regulation. 

(d) Tli e prospective rat e establish e d in Paragraph 
(c) of this Rul e , will b e paid to th e provider for 
esePi Medicaid e ligibl e day during th e year in 
which it will apply. — Th e s e prosp e ctiv e rat e s may 
bo det e rmin e d after th e date in which th e y ar e to 
go into effect and paid r e troactiv e ly to that dat e . 

fe-) — If allowable costs ar e l e ss than prosp e ctiv e 
paym e nts — during — a — eest — r e porting — p e riod, — a 
provid e r may r e tain on e half of th e diff e r e nc e 
between costs and paym e nt s , up to an amount of 
five dollar s ($5.00) p e r pati e nt day. — Th e balanc e 
of unexp e nd e d paym e nts must be r e fund e d to the 
Division of M e dical A ss istanc e . 

f4^ Eff e ctiv e — fef — faciliti e s — tbet — have — been 

award e d a certificato of need on or aft e r January 
-k — 1993. n e w provid e rs ar e thos e that hav e not 
fil e d a cost r e port covering at l e ast on e full year of 
normal op e rations. — A n e w provid e r's initial rat e 
shaH — be — a — n e gotiat e d — pate — bas e d — upon — the 
provid e r's proposed budg e t. — This rat e for a n e w 
facility shall not e xc e ed th e av e rag e rat e being 
allow e d for e xi s ting faciliti e s or any oth e r limit 
e stablished in stat e law. — The rat e shall b e r e bofl e d 
to th e actual co s t incurr e d in th e first full year of 
normal op e rations in th e year after audit e d data for 
that fir s t y e ar of normal op e rations is compl e t e d. 

fg-) A — s p e cial — paym e nt — m — addition — te — t)w 

prosp e ctive rate shall b e mad e in the year that any 
provid e r chang es from the cash basis to th e accrual 
basis of accounting for vacation leav e co s t s . — The 
amount of this paym e nt s hall b e d e t e rmin e d in 
accordanc e — w4th — Tttk — XVIII — allowabl e — eest 
principl e s and shall e qual th e M e dicaid s har e of 
th e vacation accrual that i s charg e d in th e y e ar of 
th e change including th e cost vacation l e av e e arn e d 
for that y e ar and all pr e vious y e ars l e s s vacation 
leav e us e d or e xp e nd e d ov e r th e sam e period and 
vacation — l e av e — accru e d — prior — te — the — date — &f 
certification. — Th e paym e nt shall b e mad e as a 
lump sum paym e nt that r e pr e s e nts th e total amount 
du e for th e e ntir e fiscal y e ar. — An int e rim paym e nt 
may b e mad e bas e d on a r e a s onabl e e stimat e of th e 
cost of th e vacation accrual. — Th e paym e nt shall b e 
adjust e d to actual cost aft e r audit. 

(h) Start up costs ar e costs incurr e d by an ICF 
.MR provid e r whil e pr e paring to provid e s e rvic e s. 
It includ e s th e cost — incurr e d by providers — te 
provide se rvic es at th e lev e l nec e ssary to obtain 
c e rtification l e ss any r e v e nu e or grants r e lat e d to 
s tart up. — The North Carolina M e dicaid Program 
w414 — r e imbur se — th ese — s tart up — costs — ttp — te — a 



maximum e qual to the facility's rat e times its beds 

times — 1 20 days . TTiis reimbursem e nt will be 

included in th e facility's per di e m rate. — These 
start up costs will b e amortiz e d over 36 months 
and will bo report e d as Administrativ e and G e n e ral 
in th e op e rating cost r e p>ort. A start up cost r e port 
will b e r e quir e d to be submitted along with the 
initial cost report submitt e d by th e n e w ICF MR 
provid e r — once — c e rtifi e d — te — participate — m — tbe 
M e dicaid program. — S e e Paragraph (a) of this Rule 

fef — initial — eest — r e porting — r e quir e ments. Ne 

advanc e of start up funds shall b e mad e . — TJhs 
Paragraph will bo eff e ctiv e for faciliti e s that ar e 
award e d a C e rtificat e of N ee d on or after January 
I. 1992. 



f) 



fh) — Th e annual capital cost or lease e xp e ns e 
limitation shall — apply: 

4y 



H^ 



To all facilities with 21 or mor e b e ds 
and to faciliti e s consisting of multiple 
d e tached buildings in which at least on e 

contains — e ight — c e rtifi e d — b e ds. The 

facilities covered by this — limit shall 

hav e — been — award e d — a — C e rtificat e — ef 

Need before January — h — 1993. — The 

annual capital cost or lease exp e nse 

limit shall b e the lesser of actual cost or 

th e s um of Subparagraphs (i)(l)(A) and 

(B) of this Rule as follows: 

■fA) — The annual d e pr e ciation on plant and 

fix e d — e quipm e nt — that — would — be 

comput e d on ass e ts equal to thirty 

thou s and dollars ($30,000) p e r b e d 

(capital r e cov e ry base) during — fiscal 

year 19 8 2 83 adjust e d for changes in 

the following cost ind e x e s: 

<M For th e p e riod after 19 8 2 8 3 and 

pfief — te — 1992 93 — the — capital 
r e cov e ry base shall b e adjust e d 
for chang e s in the Dodg e Building 
Gest — Ind e x — of North — Carolina 
citi e s. 

^+i-) For th e p e riod after 1991 92 the 

capital — r e cov e ry — base — shaH — be 
adjust e d — fef — chang e s — m — th« 

implicit pric e deflator fef 

r e sid e ntial structur e s as provided 
by th e Offic e of Stat e Budg e t and 

Manag e m e nt. Depr e ciation 

e xp e nse shall b e computed using 
the — s traight — 1+fte — m e thod — ef 
d e preciation and the us e ful lif e 
standards — e stablish e d — by — the 
Am e rican Hospital A ss ociation. 
■(©) — Ah — int e r e st — allowanc e — e qual — te — 1-0 
p e rc e nt of th e capital recovery base 



i 



€ 



716 



8:9 



NORTH CAROLINA REGISTER 



August 2, 1993 



PROPOSED RULES 



u s od to oomput e annual doprooiation 
on plant and fix e d equipm e nt. 
(€) — Th« — annual — oapital — eest — ef — lease 
oxponoo limit does not apply to l e as e s 
in off e ot prior to August 3, 19 8 3. 

(3) To all faoilitioo that have boon award e d 

e — Certifioat e — of Nood — on — or — after 
January 1 , 1 993 , th e annual capital cost 
or loQoo exp e ns e shall b e limit e d to th e 
loss e r of aotual oost or th e fair and 
roasonabl e — doprooiation — and — intorost 
e xp e ns e — oaloulat e d — en — the — capital 
r e cov e ry bas e d in offoot at th e tim e of 
certification and enrollm e nt into th e 
Medicaid program. 

(A^ — Depr e ciation exp e ns e shall be 

comput e d — using — the — straight — line 
method of d e preciation and th e us e ful 
life — standards — e stablish e d — by — the 
Am e rican Hospital Association. 
(B) — Inter e st e xponso is comput e d using a 



(Gf 



10 p e rcent rat e of int e r e st. 
Th e — capital recov e ry 



bas e 



OBtabliohod as thirty thousand dollars 

($30,000) — ef — plant — and feted 

equipm e nt asoots p e r b e d during th e 
fiscal y e ar 1982 83 adju s t e d for th e 
changes in tho cost ind e x e s contain e d 
in Subparagraphs (i), (1)(A), (i) and 
(ii) of this Rul e . 
{©) — R e cov e ry — of th e oost — of mat e rial 
additions to plant and fix e d e quipm e nt 

subs e qu e nt — te c e rtification and 

enrollment in th e M e dicaid program 
s hall b e subject to r e vi e w on a cas e 
by case basis. 
(J) In addition to th e prospectiv e dir e ct p e r di e m 
rates d e v e lop e d und e r thia Section, e ff e ctiv e July 
4-; — 1992, an int e rim paym e nt add on will — be 
appli e d to th e total rate to cov e r th e e stimat e d oost 
requir e d und e r Titl e 29, Part 1910, Subpart Z, 
S e ction — 1910.1030 of th e Cod e of F e d e ral 
Regulations. — Th e int e rim rat e will b e s ubj e ct to 
final s e ttlem e nt r e conciliation with r e asonabl e oost 
to mo e t tho requirem e nts of Part 1910. — Th e final 
settl e m e nt reconciliation will bo offeotuated during 
tho annual oost r e port se ttl e m e nt proc e ss. — An 
int e rim rato add on to th e prosp e ctiv e rat e will b e 
allow e d, subj e ct to final s e ttl e m e nt r e conciliation, 
in subs o quont rat e p e riods until ad e quat e cost 
history is available to includ e th e oost of m ee ting 
tho requir e m e nts of Part 1910 in th e prosp e ctiv e 

Each provider shall maintain facility s pecific 
financial records which reflect all expenditures 



incurred and revenues earned related to its ICF- 
MR services in the Medicaid Program. In addi- 
tion, the financial records shall properly and 
clearly reflect all other sources of funds available 
to the facility's Medicaid ICF-MR program. 

(1) Such financial records shall provide clear 
and precise justification and support for 
entries included in the cost report, and 
included in related budgets. 

(2) The financial records shall include at a 
minimum separate accounts for each type 
of expense, revenue, and other funding 
resources included in the annual cost 
report. All items on the cost report shall 
be supported by clear and precise finan- 
cial records. Cost reports that fail this 
requirement are deemed to be improperly 
filed and subject to the provisions under 
this Rule related to the failure to file said 
reports . 

(3) Effective July \^ 1993. property owner- 
ship and use, housekeeping, and opera- 
tion and maintenance of plant costs relat- 
ed to day treatment services should be 
separately accounted for on the 
provider's books and records . Said costs 
should be reported separately as direct 
care costs on the 1994 cost report, 
consistent with guidelines established by 
the Division of Medical Assistance. 

Authority G.S. 108A-25(b); W8A-54; 108A-55; 
S.L. 1985, C.479, s. 86; 42 C.F.R. Part 447. 
Subpart C. 

.0304 RATE SETTING METHODS 

FOR NON-STATE FACILITIES 

R e consid e ration r e vi e ws on rat e s mu s t b e fil e d in 
writing within 60 days after a provid e r r e c e iv e s 
notification — ©f — its — prosp e ctiv e — rate^ — Such 
r e consid e ration — r e vi e ws — wiH — be — proc e ss e d — in 
accordanc e with tho provi s ion s of 10 NCAC 26K . 

(a) A prospective rate is determined annually for 
each non-state facility to be effective for dates of 
service for a \2 month rate period beginning each 
July _L The prospective rate shall be paid to the 
provider for every Medicaid eligible day during 
the a pplicable rate year. The prospective rate may 
be determined after the effective date and paid 
retroactively to that date. Each non-state facility, 
except those facilities where Paragraph (v) of this 
Rule applies, shall be classified into one of the 
following groups: 

(1) Group i z Facilities with six beds or 
less and provider owns less than 150 



8:9 



NORTH CAROLINA REGISTER 



August 2, 1993 



717 



PROPOSED RULES 



OJ 



ill 

i6j 



total beds in said facilities. 
Group 2 2 Facilities with six beds or 
less and provider owns 150 or more 
beds in said facilities. 
Group 3 ; Facilities with seven to 15 
beds. 

Group 4 ; Facilities with 16 to 40 beds. 
Group 5 ; Facilities with over 40 beds. 
Group 6 2 Facilities with medically 
fragile clients. For rate reimbursement 
purposes under this plan, medically 
fragile clients are defined as any 
individual with complex medical 
problems who have chronic debilitating 
diseases or conditions of one or more 
physiological or organ systems which 
generally make them dependent upon 
24-hour a day medical/nursing/health 
supers'lsion or intervention. 
Facilities shall be reclassified into 

appropriate groups as defined in Paragraph (a) of 

this Rule when necessary. 

( 1 ) When a facility is reclassified, the rate 
will be adjusted retroactively back to 
the beginning of the current rate year. 
This adjustment shall give full 
consideration to any reclassification 

facts or 



ib] 



based on the change in 
circumstances during the 



year. 



Overpayments related to this retroactive 
rate adjustment shall be repaid to the 
Medicaid program. Underpayments 
related to this retroactive rate 
adjustment shall be paid to the 
provider. 

(2) The provider shall be given the 
opportunity' to appeal the merits of the 
reclassification of any facility, prior to 
any decision by the Division of Medical 
Assistance. 

(3) The provider shall be notified in writing 
30 days before the implementation of 
new rates resulting from the 
reclassification of any facility. 

(4) The providers and the Division of 
Medical Assistance shall make every 
reasonable effort to ensure that each 
and evePy' facility is properly classified 
for rate setting purposes. 

(c> Rates are derived from either filed, desk or 
t~ield audited cost reports for a base year period to 
be selected by the state. The rate setting impact of 
a facility filing a less than full year's cost report in 
the base year shall be fully considered by the 
Division of Medical Assistance in determining the 



appropriate per diem rate. 

(d) Rates developed from filed cost reports may 
be retroactively adjusted if there is found to exist 
more than a two percent difference between the 
filed per diem cost and either the desk audited or 
field audited per diem cost for the same reporting 
period. Rates developed from desk audited cost 
reports may be retroactively adjusted if there is 
found to exist more than a two percent difference 
between the desk audited per diem cost and the 
field audited per diem cost for the same reporting 
period. The rate adjustment may be made after 
written notification to the provider 30 days prior to 
implementation of the rate adjustment. 

(e) Each prospective rate consists of the sum of 
the three components as follows: 

(1) Property ownership and use (POU); 
{2} Administrative and General and 

Operation and Maintenance of Plant 

(AG/OMP); 
(3) Direct care. 

(f) The POU rate is based on the Medicaid cost 
reflected in the POU cost center as shown on the 
1992 cost report format, except for POU costs 
related to day programs are treated like all other 
day program costs and therefore are considered to 
be direct care costs. 

(g) The AG/OMP rate is based on the sum of 
the Medicaid cost reflected in the AG. 
housekeeping and OMP cost centers as shown on 
the 1992 cost report format, except for the 
following: 

(1) Labor related OMP costs are considered 
to be direct care costs. Non-labor 
related OMP costs, as reflected in the 
1992 cost report format, are included as 
OMP costs for determining the 
AG/OMP component of a facility's 
rate. 

(2) Non-labor related housekeeping costs. 
as reflected in the 1992 cost report 
format, are included as OMP costs for 
determining the AG/OMP component of 
a facility's rate. Labor related 
housekeeping costs are considered to be 
direct care costs. 

(3) OMP and housekeeping costs related to 
day programs are treated like all other 
day program costs and therefore are 
considered to be direct care costs. 

(h) The direct care rate is based on the Medicaid 
cost as shown on the 1992 cost report format, less 
the costs related to POU and AG/OMP discussed 
in Paragraphs (f) and (g) of this Rule. 

ijj The facility's total per diem rate shall be 



718 



8:9 



NORTH CAROLINA REGISTER 



August 2, 1993 



PROPOSED RULES 



limited to the lesser of the actual amount incurred 
in the base year or the sum of the Fiftieth 
percentile of each cost category, achieved by the 
related facility group in the base year. 

{]} Exceptions to the fiftieth percentile cost 
category cap included in Paragraph (]} are, as 
follows: 

(1) Facility Group 2 z The per diem 
amounts for each of the three cost 
categories are to be limited to 
reasonable amounts as determined by 
the Division of Medical Assistance. 

(2) Facility Group 3 z POU costs are 
limited to an amount which is 
determined to be reasonable by the 
Division of Medical Assistance. The 
rate for a facility in this group is the 
lower of the facility's actual costs 
during the base year, or the sum of the 
POU, as determined in this 
Subparagraph, and the AG/OMP and 
direct costs, as determined in 
accordance with Paragraph (i) of this 
Rule. 

(3) Facility Group 4 - Cost categories are 
limited to the cost incurred in the base 
year by the facility in this category 
determined to represent fair and 
reasonable costs for this group as 
determined by the Division of Medical 
Assistance. 

(4) Facility Group 5 z Cost categories are 
limited to the weighted average cost 
incurred by the facilities in this group 
during the base year. 

(k) If. during a cost reporting period, allowable 
costs are less than prospective payments that are 
not based on an appeal, then a provider may retain 
one-half of said difference, up to an amount of Five 
dollars ($5.00) per patient day. TTie balance of 
unexpended payments shall be refunded to the 
Division of Medical Assistance. If allowable costs 
are less than prospective payments that are based 
on an appeal, then all of the unexpended payments 
shall be refunded to the Division of Medical 
Assistance. Cost in excess of a facility's total 
prospective payment rate are not reimbursable. 

(1) To compute each facility's current 
prospective rate, the total rate established by 
Paragraphs (a) through {]) of this Rule is adjusted 
for price level changes since the base year. No 
inflation factor for any provider shall exceed the 
maximum amount permitted for that provider by 
federal or state law and regulations. 

(1) Price level adjustment factors are 



computed using aggregate base year 
costs in the following manner: 

(A) Costs shall be separated into three 
groups: 

(i} Labor, 
(ii) Non-labor . 
(iii) Fixed. 

(B) The relative weight of each cost group 
is calculated to the second decimal 
point by dividing the total costs of 
each group (labor, nonlabor. and 
fixed) by the total industry cost. 

(C) Price level adjustment factors for each 
cost group shall be established as 
follows: 

(i) Labor. The percentage change 
for labor costs is based on the 
projected average hourly wage of 
North Carolina service workers . 
Salaries for all personnel shall be 
limited to levels of comparable 
positions in state owned facilities 
or levels speciFied by the Division 
of Medical Assistance, 
(ii) Nonlabor. The percentage change 
for nonlabor costs is based on the 
projected annual change in the 
implicit price deflator for the 
Gross National Product as 
provided by the North Carolina 
OfFice of State Budget and 
Management, 
(iii) Fixed. No price level adjustment 
shall be made for this category. 
The weights computed i_n 
Subparagraph (1)(1)(B) of tlus Rule 
shall be multiplied times the rates 
computed in Paragraph (c) of this 
Rule. These weighted rates shall be 
added to obtain the composite 
inflation rate. 



im 



(m) The initial rate for facilities that have been 
awarded a Certificate of Need on or after January 
_L 1993 is established at the lower of the feir and 
reasonable costs in the provider's budget, as 
determined by the Division of Medical Assistance. 
or the projected costs in the provider's Certificate 
of Need a pplication adjusted from the projected 
opening date in the Certificate of Need application 
to the current rate period in which the facility is 
certified based on the price level change 
methodology set forth in Paragraph (1) of this 
Rule, or the average current rate paid to facilities 
in the appropriate facility group as determined by 
Division of Medical Assistance, or the rate 



8:9 



NORTH CAROLINA REGISTER 



August 2, 1993 



719 



PROPOSED RULES 



currently paid to the owning provider, if the 
provider currently has an approved chain rate for 
facilities in the related facility category. The rate 
may be rebased to the actual cost incurred in the 
first full year of normal operations in the year 
after an audit of the first year of normal operation 
is completed. 

(1) For facilities that have been awarded a 
Certificate of Need before January J_, 
1993. the initial rate is established at 
the lower of the fair and reasonable 
costs in the provider's budget, as 
determined by the Division of Medical 
Assistance, or the projected costs in the 
provider's Certificate of Need 
application adjusted from the projected 
opening date in the Certificate of Need 
application to the current rate period in 
which the facility is certified based on 
the price level change methodology set 
forth in Paragraph (1} of this Rule, or 
the maximum rate paid to facilities in 
the appropriate facility group, or the 
rate currently paid to the owning 
provider, if the provider has an 
approved chain rate for facilities in the 
related facility category. The rate may 
be rebased to the actual cost incurred in 
the first full year of normal operations 
in the year after an audit of the first 
year of normal operation is completed. 

(2) In the event of a change in ownership, 
the new owner receives no more than 
the rate of payment assigned to the 
previous owner. When a Group 2 
provider purchases a facility currently 
reimbursed as a Group i facility, the 
purchased facility shall receive the 
lower of the rate generated by the 
Group 1 reimbursement methodology or 
the rate generated by the Group 2 
methodology. 

(3) Except in cases wherein the provider 
has failed to fi]e supporting information 
as requested by the Division of Medical 
Assistance, initial rates shall be granted 
to new enrolled facilities no later than 
60 days from the provider's filing of 
properly prepared budgets and 
supporting information. 

(4) The initial rate for a new facility shall 
be applicable to all dates of service 
commencing with the date the facility is 
certificated by the Medicaid Program. 

(n) A provider with more than one facility in a 



particular facility group, except Group S, may be 
allowed to recover costs through a combined 
uniform rate for all facilities in a particular facility 
group. 

(1) Combined uniform rates for chain 
providers within a particular facility 
group may be approved upon written 
request from the provider and after 
review by the Division of Medical 
Assistance. 

(2) An approved combined uniform rate 
must be applied to all facilities owned 
by the chain provider in a particular 
facility group. 

(3") In determining a combined uniform rate 
for a particular facility group, the 
weighted average of each facility's rate, 
calculated in accordance to aU other 
provisions of this Rule, shall be used. 
(4) A combined uniform rate approved for 
chain providers prior to July \^ 1993, is 
considered to be void subsequent to 
July li 1993. if the combined uniform 
rate is inconsistent with the rate setting 
provisions of this Section, 
(o) Each out-of-state provider shall be 
reimbursed at the lower of the applicable North 
Carolina rate, as established by this plan for in- 
state facilities, or the provider's per diem rate as 
established by the state in which the provider is 
located. An out-of-state provider is defined as a 
provider that is enrolled in the Medicaid program 
of another state and provides ICF-MR services to 
a North Carolina Medicaid client in a facility 
located in the state of enrollment. Rates for out- 

to 



subject 



cost 



of-state providers are not 
settlement. 

(p) Under no circumstances shall the Medicaid 
per diem rate exceed the private pay rate of a 
facility. 

(q) Should the Division of Medical Assistance 
be unable to establish a rate for a facility, based on 
this Rule and the applicable facts known, the 
Division of Medical Assistance may approve an 
interim rate. 

(1) The interim rate shall not exceed the 
rate cap established under this Section 
for the applicable facility group. 

(2) The interim rate shall be replaced by a 
permanent rate, effective retroactive to 
the commencement of the interim rate, 
by the Division of Medical Assistance, 
upon the determination of said rate 
based on this Rule and the applicable 
facts. 



720 



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NORTH CAROLINA REGISTER 



August 2, 1993 



PROPOSED RULES 



(3) The provider shall repay to the Division 
of Medical Assistance any overpayment 
resulting from the interim rate 
exceeding the subsequent permanent 
rate. 
(r) In addition to the prospective per diem rate 
developed under this Section, effective July l^ 
1992, an interim payment add on shall be applied 
to the total rate to cover the estimated cost 
required under Title 29, Part 1910, Subpart Z, 
Section 1910.1030 of the Code of Federal 
Regulations. The interim rate shall be subject to 
final settlement reconciliation with reasonable cost 
to meet the requirements of Section 1910.1030. 
The final settlement reconciliation shall be 
effectuated during the aimual cost report settlement 
process. An interim rate add on to the prospective 
rate shall be allowed, subject to final settlement 
reconciliation, in subsequent rate periods until cost 
history is available to include the cost of meeting 
the requirements of Section 1910.1030 in the 
prospective rate. This interim add on shall be 
removed, upon 10 days written notice to 
providers, should it be determined by appropriate 
authorities that the requirements under Title 29, 
Part 1910, Subpart 2, Section 1910.1030 of the 
Code of Federal Regulations do not apply to ICF- 
MR facilities. 

(s) All rates , except those noted otherwise in 
this Rule, approved under this Rule are considered 
to be permanent. 

(t) In the event that the rate for a facility cannot 
be developed so that it shall be effective on the 
first day of the rate period, due to the provider not 
submitting the required reports by the due date, 
the average rate for facilities in the same facility 
group, or the facility's current rate, whichever is 
lower, shall be in effect until such time as the 
Division of Medical Assistance can develop a new 
rate. 

(u) When the Division of Medical Assistance 
develops a new rate for a facility for which a rate 
was paid in accordance with Paragraph (t) of this 
Rule, the rate developed shall be effective on the 
first day of the second month following the receipt 
by the Division of Medical Assistance of the 
required reports. The Division of Medical 
Assistance may, upon its own motion or upon 
application and just cause shown by the provider, 
within 60 days subsequent to submission of the 
delinquent report, make the rate retroactive to the 
beginning of the rate period in question. Any 
overpayment to the provider resulting from this 
temporary rate being greater than the final 
approved prospective rate for the facility shall be 



repaid to the Medicaid Program. 

(v) ICF-MR facilities meeting the requirements 
of the North Carolina Division of Facility Services 
as a facility affiliated with one or more of the four 
medical schools in the state and providing services 
on a statewide basis to children with various 
developmental disabilities who are in need of long- 
term high acuity nursing care, dependent upon 
high technology machines (i.e. ventilators and 
other su pportive breathing a pparatus) monitors, 
and feeding techniques shall have a prospective 
payment rate that approximates cost of care. The 
payment rate may be reviewed periodically, no 
more than quarterly, to assure proper payment. A 
cost settlement at the completion of the fiscal 
period year end is required. Payments in excess 
of cost are to be returned to the Division of 
Medical Assistance. 

(w) A special payment in addition to the 
prospective rate shall be made in the year that any 
provider changes from the cash basis to the accrual 
basis of accounting for vacation leave costs. The 
amount of this payment shall be determined in 
accordance with Title XVI II allowable cost 
principles and shall equal the Medicaid share of 
the vacation accrual that is charged in the year of 
the change including the cost of vacation leave 
earned for that year and all previous years less 
vacation leave used or expended over the same 
time period and vacation leave accrued prior to the 
date of certification. The payment shall be made 
as a lump sum payment that represents the total 
amount due for the entire fiscal year. An interim 
payment may be made based on an estimate of the 
cost of the vacation accrual. The payment shall be 
adjusted to actual cost after audit. 

(X) The annual prospective rate, effective 
beginning each July J_^ for facilities that 
commenced operations under the Medicaid 
Program subsequent to the base year used to 
establish rates . and therefore did not file a cost 
report for the base year, shall be based on the 
facility's initial rate, established in accordance with 
Paragraph (m) of this Rule, and the applicable 
price level changes, in accordance with Paragraph 
tl) of this Rule. 

Authority G.S. 108A-25(h): 108A-54: W8A-55; 
]50B-1];S.L. 1985, c. 479, s. 86; 42 C.F.R. Part 
447. Subpart C. 

.0305 ALLOWABLE COSTS 

(a) To be considered allowable, costs shall not 
exceed fair and reasonable levels as determined by 
Division of Medical Assistance, and shall be 



8:9 



NORTH CAROLINA REGISTER 



August 2, 1993 



721 



PROPOSED RULES 



re<quired to provide necessary client care under the 
Medicaid Program . 

(1) The cost of goods or services sold to 
non-Medicaid clients shall be excluded 
in determining the allowable client 
related expenses reimbursable under the 
Medicaid program. If the provider has 
not determined the cost of such items, 
the revenue generated from such sales 
shall be used to offset the total cost of 
such services. 

(2) Examples of sources of such income 
items include, but are not limited to: 

supplies and drugs sold by the facility 

for use by nonresidents. 

telephone and telegraph services for 

which a charge is made, 

discount on purchases, 

employee rental of living quarters. 

cafeterias. 



im 

ID} 
IE) 
IF) 



meals provided to staff or a client's 

guest for which there is a charge, 

(G) lease of office and other space by 

concessionaires providing services not 

related to intermediate care facility 

services, 

(H) interest income except for income 

earned of qualified pension funds and 

income from gifts or grants which are 

donor restricted. 

(h) Except where specific rules concerning 

allowability of costs are stated herein, the Division 

of Medical Assistance shall use as its major 

determining factor in deciding on the allowability 

of costs, the Medicare Provider Reimbursement 

Manual, published by the U.S. Department of 

Health and Human Services' Health Care 

Financing Administration (HCFA). Where 

specific rules stated herein or in HIM- 15 are silent 

concerning the allowability of costs, the Division 

of Medical Assistance shall determine allowability 

of costs based on a case specific review taking into 

consideration the reasonableness of said costs and 

their relationship to client care and generally 

accepted accounting principles, consistent with this 

Rule. 



(c) As determined by the Division of Medical 
Assistance, expenses or portion of expenses 
reported by an individual facility that are not 
reasonably related to the efficient and economical 
provision of care in accordance to the requirements 
of this Rule, because of either the nature or 
amount of the item, shall not be allowed. 

(1) Reasonable compensation, as 
determined by Division of Medical 



Assistance, of individuals employed by 
a provider is an allowable cost, 
provided such employees are engaged 
in client related functions and that the 
compensation is reasonable in light of 
industry historical data. The historical 
data shall include, but not be limited to, 
salary levels for similar services in the 
same market in which the facility is 
located. 

(2) Payroll records shall be maintained by 
the provider to substantiate the staffing 
costs reported to tlie Division of 
Medical Assistance. Payroll records 
shall indicate each employee's 
classification, hours worked, rate of 
pay, and the functional area to which 
the employee was assigned and actually 
worked. If an employee performs 
duties in more than one cost center, the 
provider shall maintain periodic time 
studies in order to allocate salary and 
wage costs to the appropriate cost 
centers, as determined by the Division 
of Medical Assistance. These periodic 
time studies shall be maintained in 
accordance with the Medicare Provider 
Reimbursement Manual. 

(3) The Division of Medical Assistance 
shall not reimburse costs related to 
excess staff. 

(4) Compensation for owners is allowable 
only for duties which otherwise would 
require the employment of another 
individual in the provision of ICF-MR 
related services. Said compensation 
shall be limited to a reasonable amount. 
as determined by the Division of 
Medical Assistance, not to exceed that 
paid in tlie local market place for 
similar type duties. Compensation for 
owners is not allowable where the 
services are not related to tlie provision 
of ICF-MR related services. 

(d) As determined by the Division of Medical 
Assistance, costs which are not properly related to 
client care or treatment, and which principally 
afford diversion, entertainment or amusement to 
owners, operators, or employees of ttie facility 
shall not be allowed. 

(e) As determined by the Division of Medical 
Assistance, costs for any interest expense related 
to funding expenses in excess of a fair and 
reasonable amount, or penalty imposed by 
governmental agencies or courts and the costs of 



722 



8:9 



NORTH CAROLINA REGISTER 



August 2, 1993 



PROPOSED RULES 



insurance policies obtained solely to insure against 
such penalty, shall not be allowed. 

(f) As determined by the Division of Medical 
Assistance, costs of contributions or other 
payments to political parties, candidates or 
organizations shall not be allowed. 

(g) As determined by the Division of Medical 
Assistance, only that portion of dues paid to any 
professional association which has been 
demonstrated to be reasonable in amount and 
attributable to Medicaid Program related 
expenditures other than for lobbying or political 
contributions shall be allowed. The burden of 
proof shall be on the provider to justify the 
inclusion of any professional association dues. 
Association budgets may be considered in 
determining said justification. 

(h) Any cost of the sale, purchase, alteration, 
construction, rehabilitation or renovation of a 
physical plant or interest in real property shall be 
considered allowable up to the amount approved 
by the Division of Medical Assistance. Cost is 
limited by the applicable provisions of Paragraphs 
(i) and (1) of this Rule. Cost is allowable only to 
the extent it is necessary for the provision of 
adequate client care under this Rule, as determined 
by the Department of Human Resources. Cost, and 
the associated financing, equal to or greater than 
ten thousand dollars ($10,000) related to existing 
facilities or the construction of replacement 
facilities is subject to prior Division of Medical 
Assistance approval. Providers shall not incur said 
costs in a piece meal fashion in order to avoid the 
ten thousand dollars ($10,000) limit. Failure to 
acquire prior a pproval may result in the 
disallowance of said cost from Medicaid 
reimbursement. 



(1) The provider shall file the necessary 
documentation to support the 
justification for the proposed 
expenditure and related financing with 
the Division of Medical Assistance no 
later than 90 days prior to the proposed 
transaction's commencement date. 

(2) The Division of Medical Assistance 
shall render a decision in writing to the 
provider on the propriety of the 
proposed transaction no later than 30 
days prior to the proposed transaction's 
commencement date. 

(3) The time requirements of 
Subparagraphs (h) (1) and (2) of this 
Rule may be altered, with just cause 
shown, by the Division of Medical 
Assistance. 



(4) For any transaction resulting in a 
change of ownership, the valuation of 
the asset shall be limited to the lesser of 
the allowable acquisition cost of the 
asset to the first owner of record who 
has received Medicaid payment for said 
asset, less any accumulated 
depreciation, plus any allowable 
improvements, or the acquisition cost of 
the asset to the new owner. Payment of 
rent by the Medicaid enrolled provider 
to the lessor of a facility shall constitute 
Medicaid payments under this Rule. 

(5) Costs (including legal fees, accounting 
and administrative costs, travel costs, 
and the costs of feasibility studies) 
attributable to the negotiation or 
settlement of the sale or purchase of 
any capital asset (by acquisition or 
merger) for which any payment has 
previously been made under Medicaid, 
shall not be allowable for 
reimbursement. 

(6) An exception may be applied by the 
Division of Medical Assistance to the 
requirements of either Subparagraph (h) 
(4) or {5j of this Rule, if jt can be 
proven that the change in ownership 
shall result in increasing the level of 
care provided to the facility's clients up 
to the level required by the Division of 
Facility Services. 

(A) In order to meet this exception, U 
shall be proven that the previous 
facility owner was not providing, and 
was incapable of providing, adequate 
client service, as determined by the 
Department of Human Resources. 

(B) The burden of proof in supporting this 
exception is on the provider. The 
provider shall request, in writing, 
consideration of this exception from 
the Division of Medical Assistance. 

(C) Consideration of this exception may 
result in the Division of Medical 
Assistance allowing some or all of the 
costs in Subparagraph (h) (5) for 
Medicaid reimbursement. 

(D) Consideration of this exception may 
result in the Division of Medical 
Assistance allowing a substitute 
valuation for the transferred property 
under Subparagraph (h) (4) that is 
greater than the limit noted, but in no 
instance greater than the acquisition 



8:9 



NORTH CAROLINA REGISTER 



August 2, 1993 



723 



PROPOSED RULES 



cost of the asset to the new owner. 
(i) A facility's annual rental payments for real 
property' may be considered an allowable cost 
subject to the following conditions and the limits 
included in Paragraph lil H) of this Rule: 

(1) The lease is reviewed by and acceptable 
to the Division of Medical Assistance. 

if 



(A] 



mi 



The lease shall not be acceptable 
the associated asset(s) are not needed 
for client care as determined by the 
Division of Medical Assistance. 
TTie lease shall not be acceptable if 
alternate means of financing is 
deemed available and more 



economical. 
determination 



in making this 
all aspects of the 



economic impact of the lease shall be 
examined, including length of lease, 
the cost of the asset to the owner, and 
the incremental rate of return 
provided to the lessor. In addition. 
the leasee's incremental implicit rate 
of interest and financial position shall 
be considered. 

(C) The test of reasonableness shall take 
into account the agreement between 
the owner and the tenant regarding 
the payment of related property costs. 

(D) Absent clear justification to the 
contrary . material capital 
improvements to leased property that 
are necessary to maintain the asset in 
its ordinar\' state of usability at the 
commencement of the lease, shall be 
the responsibility of the lessor- 



Examples of said costs are roof or 
utility service replacement due to 
reasons beyond the prudent control of 
the lessee. 

(E) Effective July L 1993. requests for 
prior approval of new leases and lease 
renewals must be submitted whenever 
possible at least 120 days prior to the 
last date for the exercise of the lease 
or lease renewal option. 

(F) Failure to acquire prior approval of 
leases and lease renewals may result 
in the disallowance of said cost from 
Medicaid reimbursement. 

(2) The lease shall be considered an arm's- 



length transaction under HIM-15. 



Leases failing the HIM-15 arm's-length 
transaction test shall be reimbursed at 
the leased asset's reasonable cost of 
depreciation, interest, if any, and other 



related expenses, including but not 
limited to reasonable maintenance costs. 
as determined by the Division of 
Medical Assistance. It is the 

responsibility of the provider to 
maintain auditable records to document 
these ownership costs to the Division of 
Medical Assistance or its designated 
contract auditors. Undocumented costs 
may be disallowed. 

(3) The lease amount is comparable to 
similar leases for properties with 
similar functions in the same 
geographical area. 

(4) The lease agreement between unrelated 
parties shall include the provision that 
the amount of rental to be paid by the 
lessee to the lessor shall not, in any 
event, exceed the amount approved by 
the Division of Medical Assistance. 

£[} Depreciation shall be an allowable cost when 
based upon factors of historical costs and useful 
life. Depreciation shall be subject to the 
provisions of this Paragraph and Subparagraph 
(j)(l) of this Rule. For the purpose of this Section: 

(1) Unless an exception is made by the 
Division of Medical Assistance, the 
useful life shall be the higher of the 
reported useful life or that from the 
Estimated Useful Lives of Depreciable 
Hospital Assets (1988 edition), 
published by the American Hospital 
Association, and available by writing to 
the American Hospital Association. 840 
Lake Shore Drive. Chicago. Illinois. 
60611. In certain instances, a useful 
life that is based upon historical 
experience as shown by documentary 
evidence and approved by the Division 
of Medical Assistance may be allowed. 
Should the provider desire a 
depreciation rate different from that 
based on the general Rule in 
Subparagraph ii) Hi of this Rule, then 
said provider shall make the request in 
writing to the Division of Medical 
Assistance. Upon review and analysis. 
the Division of Medical Assistance shall 
make a determination in writing as to 
the reasonableness of said request. 

(2) The depreciation method used shall be 
the straight-line method. 

{3} Unless an exception i^ granted by the 
Division of Medical Assistance, 
depreciated rates shall be applied 



724 



8:9 



NORTH CAROLINA REGISTER 



August 2, 1993 



PROPOSED RULES 



uniformly and consistently. m 
accordance with this Rule and generally 
accepted accounting principles. Should 
the provider discover that depreciation 
has been improperly recorded in prior 
years, then the provider shall within 30 
days report the error to the Division of 
Medical Assistance. The impact of the 
error on the provider's rate shall be 
fully considered by the Division of 
Medical Assistance and a rate 
adjustment may be made, with due 
cause shown. Failure to record 
depreciation properly may result in 
disallowance for Medicaid 
reimbursement purposes. 

(4) Depreciation paid to the provider by the 
Medicaid Program shall be prudently 
used by said provider to meet the 
financial requirements of providing 
adequate service to the ICF-MR clients. 

(A) Payment to related parties for costs 
disallowed by this Rule for Medicaid 
reimbursement may be considered 
imprudent use of depreciation 
reimbursement. 

(B) Imprudent use of Medicaid 
reimbursement of depreciation may 
result in the provider being required 
by the Division of Medical Assistance 
to fund the depreciation through a 
qualified independent entity or 
disallowance of depreciation for 
Medicaid reimbursement. 

(5) In order to substantiate depreciation 
expense for Medicaid reimbursement 
purposes, the property records shall 
include, at a minimum, all of the 
following, for assets purchased on or 
after July 1. 1993: 

(A) The depreciation method used. 

(B) A description of the asset. 

(C) The date the asset was acquired. 

(D) The cost of the asset. 

(E) The salvage value of the asset, 

(F) The depreciation cost, 

(G) The estimated useful life of the asset. 
(H) The depreciation expense each year. 
(I) The accumulated depreciation. 

(6) The recovery of losses associated with 
the disposal or abandonment of assets 
used to provide necessary services to 
the Medicaid program shall be 
determined on a case by case basis. 
Requests for recovery shall be made in 



writing and are subject to prior 

Division of Medical Assistance 

approval. Failure to acquire approval 

may result in the disallowance of said 

costs. 

(7) The treatment of gains associated with 

the disposal of assets used to provide 

necessary services to the Medicaid 

program shall be based on this Rule and 

the HIM-15. 

Oc) Interest cost may be considered an allowable 

cost subject to the following conditions, and the 

limits included in Paragraph (Tc)n) of this Rule: 

(1) Interest for capital indebtedness, where 

the interest expense results from the 

initial financing of the capital 

indebtedness and the ca pital 

indebtedness represents all or part of 

the current Division of Medical 

Assistance approved value of 

property. The property shall 



the 
be 



12) 



necessary for the provision of adequate 
service. as determined by the 
Department of Human Resources, to 
the clients of the ICF-MR facility. The 
financing shall be prudently incurred. 
The interest rate shall not be in excess 
of the amount a prudent borrower 
would pay at the time the loan was 
incurred. In determining the 

reasonableness of the interest rate, all 
associated factors at the time the loan 
was incurred shall be considered, 
including, but not limited to the 
following: 

(A) Current market rates of interest in the 
economy. 

(B) Industry specific rates of interest. 

(C) Provider specific financial position. 
(3) The loan agreement shall be entered 

into between parties not related through 
control, ownership, affiliation, or 
personal relationship as defined in 
HIM-15, unless this provision is waived 
in writing by the Division of Medical 
Assistance. Such waiver shall be based 
on, but not limited to. a demonstration 
of need for the indebtedness and cost 
savings resulting from the transaction. 
The burden of proof shall be on the 
provider to provide proper support and 
justification for such waiver to the 
Division of Medical Assistance. Loans 
from a related party must be clearly 
identified and reported separately on the 



8:9 



NORTH CAROLINA REGISTER 



August 2, 1993 



725 



PROPOSED RULES 



annual cost report . 

(4) Interest expense on working capital 
indebtedness is allowable, subject to the 
Division of Medical Assistance's 
approved level of working capital, and 
subject to the standards listed of this 
Rule. 

(A) Interest on excess working capita] xs 
specifically denied. 

(B) Working capital shall be established at 
the level necessary to support the 
facility's operations, after taking into 
full consideration the lead/lag impact 
of the facility's expenditures and 
reimbursements. 

(5) Interest expense for capital indebtedness 
where the interest expense results from 
the refinancing of the capital 
indebtedness, and the refinancing has 
the prior approval of the Division of 
Medical Assistance, shall be allowed in 
that amount associated with the 
outstanding principal prior to 
refinancing. Interest costs may be 
allowed in excess of the amount 
associated with the outstanding 
principal balance prior to refinancing, if 
the purpose of the debt is to acquire 
assets to be used for care of persons 
serN'ed by the facility and all other 
applicable requirements of this Rule are 
met. Interest expense resulting from 
the inclusion of the closing costs, such 
as. but not limited to. attorney's fees, 
recording costs and points in the 
refinancing transaction shall be 
considered allowable. 

(A) The provider should file all necessary 
documents supporting its request for 
refinancing prior approval to the 
Di\ision of Medical Assistance no 
later than 120 days prior to the 
proposed refinancing date. 

(B) The Division of Medical Assistance 
shall render a decision regarding the 
prior approval request no later than 
30 days prior to the proposed 
refinancing date. 

(C) Based upon just cause shown, the 
Division of Medical Assistance may 
waive the time requirements included 
in Parts (k)(5)(A) and (B) of this 
Rule, but m all cases there shall be 
enough time allowed to evaluate the 
proposed refinancing. 



(6) In all cases, in order for the interest 
expense to be allowable it shall be 
necessary to satisfy a financial need 
related to the adequate provision of 
recipient care, as determined by the 
Division of Medical Assistance. Loans 
which result in excess funds or 
investments are not considered 
necessary. 

("7) Interest expense may not be allowable 
when related to loans that failed to 
receive prior approval, as required, 
from the Division of Medical 
Assistance. 

(8) In no event shall interest expense be 
allowed on a facility's cost that is 
deemed to be excessive. 
£1) The annual capital cost or lease expense 
limitations shall apply: 

ill 1° §ii facilities with 21 or more beds 
and to facilities consisting of multiple 
detached buildings in which at least one 
contains nine certified beds. The 
facilities covered by this limit shall 
have been awarded a Cer tificate of 

The 



Need before January 



1993. 



annual capital cost or lease expense 

limit shall be the lesser of actual cost or 

the sum of Parts (A) and (B) as follows: 

(A) The annual depreciation on plant and 

fixed equipment that would be 

computed on assets equal to thirty 

thousand dollars ($30.000) per bed 

(capital recovery base) during fiscal 

year 1982-83 adjusted for changes in 

the following cost indexes: 

iil For the period after 1982-83 and 

through the period 1991-92 the 

capital recovery base shall be 

adjusted for changes in the Dodge 

Building Cost Index of North 

Carolina Cities. 

(ii) For the period beginning July L, 

1992 the capital recover\' base 

shall be adjusted for changes in 

the implicit price deflator for 

residential structures as provided 

by the Office of State Budget and 

Management. Depreciation 

expense shall be computed using 

the straight line method of 

depreciation and the useful life 

standards established by the 

American Hospital Association. 

£B} An interest allowance equal to jO 



726 



8:9 



NORTH CAROLINA REGISTER 



August 2, 1993 



PROPOSED RULES 



percent of the capital recovery base 

used to compute annual depreciation 

on plant and fixed equipment. 

(C) This annual capital cost or lease 

expense limit does not a pply to leases 

in effect prior to August 3^, 1983. 

(2) To all facilities that have been awarded 

a Certificate of Need on or after 

January 1. 1993. the annual capital cost 

or lease expense shall be limited to the 

lesser of actual cost or the fair and 

reasonable depreciation and interest 

expense calculated on the capital 

recovery base in effect at the time of 

certification and enrollment into the 

Medicaid program. 

(A) Depreciation expense shall be 
computed using the straight line 
method of depreciation and the useful 
life standards established by the 
American Hospital Association. 

(B) Interest expense is computed using a 
10 percent rate of interest. 

(C) The capital recovery base is 
established as thirty thousand dollars 
($30,000) of plant and fixed 
equipment assets per bed during the 
fiscal year 1982-83 adjusted for the 
changes in the cost indexes contained 
in Subparagraphs (1)(1)(A), (i) and (ii) 
of this Rule. 

(D) Recovery of the cost of material 
additions to plant and fixed equipment 
subsequent to certification and 
enrollment in the Medicaid program 
shall be subject to review on a case 
by case basis, consistent with the 
provisions of this Rule. 

(E) This capital cost or lease expense 
limitation should be considered the 
absolute maximum allowable for 
Medicaid reimbursement. In 
evaluating the reasonableness of a 
particular facility's capital cost or 
lease expense, regional costs of land 
and construction should be 
considered. In cases where the 
reasonable regional costs are less than 
those derived from Subparagraph 
(r)(2)(C) of this Rule, then the 
regional costs should be used in 
determining the a ppropriate capital 
cost or lease expense limitations. 

(i) Generally, in determining fair and 
reasonable facility cost, the 



average cost of similar 

construction in the same local 

area should be used. This test of 

reasonableness should be applied 

to all components of the facility's 

construction cost. including 

square footage and per unit costs. 

(ii) Absent strong, clear justification 

to the contrary, no six bed facility 

shall be allowed to recover capital 

cost and lease expense related to 

square footage in excess of 32(X) 

square feet. 

(3) Failure to provide supporting evidence 

of actual facility cost incurred may 

result in disallowance of said cost. 

(m) For providers whose annual reimbursement 

from the Medicaid program exceeds one million 

dollars ($1.000.000.) all contracts with related 

parties as defined by HIM-15 in the amount often 

thousand dollars ($10.000) or more shall receive 

prior approval from the Division of Medical 

Assistance. 



m 



Failure to file said contracts with the 
Division of Medical Assistance may 
result in disallowance of the related cost 
from Medicaid reimbursement. 



(2) The contracts should be filed with the 

Division of Medical Assistance 90 days 

prior to the effective date of said 

contracts. 

(n) Restricted funds are funds expended by the 

facility which include grants, gifts, and income 

from endowments, whether cash or otherwise. 

which shall be used only for a specific purpose as 

designated by the donor or grant instrument. 

Restricted funds are to be deducted from the 

designated Medicaid Program costs when 

determining allowable costs. Unrestricted funds 

are funds expended by the provider which include 

grants, gifts, and income from endowments, cash 

or otherwise, given to a provider without 

restriction by the donor as to their use. 

Unrestricted funds are to be deducted from the 

designated Medicaid program costs when 

determining allowable costs. 

(o) When multiple facilities or operations are 
owned by a single entity with a central office, the 
central office records shall be maintained as a 
separate set of records with costs and revenues 
separately identified and a ppropriately allocated to 
individual facilities. Allocation of central office 
costs shall be reasonable and conform to the 
directives of the Division of Medical Assistance 
and generally accepted accounting principles. 



8:9 



NORTH CAROLINA REGISTER 



August 2, 1993 



727 



PROPOSED RULES 



Such costs are allowable only to the extent that the 
centra] office is providing services related to client 
care and the provider can demonstrate that the 
central office costs improved efficiency, economy, 
or quality of recipient care. TTie burden of 
demonstrating that costs are client related lies with 
the provider. 

(1) If a provider has business enterprises 
other than those reimbursed by 
Medicaid, then the revenues, expenses, 
statistical and financial records for such 
enterprises shall be clearly identifiable 
from the records of the operations 
reimbursed by Medicaid. 

(2) If an audit establishes that records are 
not maintained so as to clearly identify 
Medicaid information, none of the co- 
mingled costs shall be recognized as 
Medicaid allowable costs and the 
provider's rate shall be adjusted to 
reflect the disallowance as of the earlier 
of the commencement of the rate period 
related to the co-mingled costs, or the 
commencement of the co-mingling of 
said costs. 

(3) After the co-mingled costs have been 
satisfactorily allocated and reported to 
the Division of Medical Assistance, and 
based on good cause shown, the 
Division of Medical Assistance may 



retroactively adjust the facility's rate. 
(4) Central office costs are generally 
charged to the Administrative and 
General cost center. In some cases. 
however, certain personnel costs which 
are direct patient care oriented may be 
allocated to direct care cost centers if 
time records are maintained to 
document the performance of direct 
patient care services. No home office 
overhead may be so allocated. The 
basis of this allocation among facilities 
participating in the North Carolina 
Medicaid program may be: 

(A) specific time records of work 
performed at each facility, or 

(B) client days in each facility to which 
the costs apply relative to the total 
client days in all the facilities to 
which the costs apply. 

(p) All criteria and limitations used by the 
Division of Medical Assistance to subject 
individual provider cost data to tests of 
reasonableness shall be made available to a 
provider upon written request. In determining 



reasonableness of costs, the Division of Medical 
Assistance may compare major cost centers or total 
costs of similar providers and may request 
satisfactory documentation from providers whose 
cost does not appear to be reasonable. Similar 
providers are those with like levels of client care, 
size, and geographic location. 

(q) Start-up costs are costs incurred by an ICF- 
MR facility while preparing to provide services at 
said facility. It includes the cost incurred by 
providers to provide services at the level necessary 
to obtain certification less any revenue or grants 
related to start-up. The North Carolina Medicaid 
Program shall reimburse these start-up costs up to 
a maximum equal to the facility's rate times its 
beds times 120 days. 

(1) Effective for all facilities whose 
Certificate of Need was granted on or 
after January \^ 1993, the start-up cost 
reimbursement shall be added to the 
facility's per diem rate calculated in 
accordance to the related provisions of 
this plan. These start-up costs shall be 
amortized over a 36 month period and 
shall be reported as administrative and 
general in the cost report. No advance 
of these start-up costs shall be made. 
These costs shall not be included in 
calculating the facility's total AG/OMP 
costs for rate setting purposes in 



O) 



accordance with this Rule. 



Effective for all facilities whose CON 
was granted prior to January \^ 1993, 
the start-up reimbursement shall be 
made in addition to the facility's per 
diem rate. No advance of start-up 
fiinds shall be made prior to the 
submission of the start-up cost report. 
An interim payment not to exceed 80 
percent of the allowable start-up costs 
can be made at the written request of a 
provider after a start-up cost report has 
been filed. The remaining balance of 
appropriately incurred start-up costs 
shall be paid after the desk audit of the 



start-up cost report has been completed. 
Any balance due to the Medicaid 



program shall be repaid promptly. 
(3) A start-up cost report shall be filed in 

accordance to the guidelines established 

by the Division of Medical Assistance. 
(4*) Allowable start-up costs may include. 

but not be limited to: 

(A) personal services expenses. 

(B) utility expenses. 



728 



8:9 



NORTH CAROLINA REGISTER 



August 2, 1993 



PROPOSED RULES 



(C) property taxes. 

(D) insurance expenses, 

(E) employee training expenses, 

(F) housekeeping expenses, 

(G) repair and maintenance expenses, 
(H) administrative expenses. 

(5) All costs that are properly identifiable 
as organization costs, or capitalizable as 
construction costs, shall be classified as 
such and excluded from start-up costs. 

(6) Cost related to increasing bed capacity 
in an existing facility shall not be 
treated as start-up costs. 

(r) Only that portion of management fees that is 
directly related to client care and is not otherwise 
functionally covered by the current staffing pattern 
is allowable in the calculation of a facility's actual, 
allowable, and reasonable costs. Management fees 
on a ger diem basis shall be limited to seven 
percent of the maximum intermediate care rate for 
nursing facilities enrolled in the Medicaid 
Program. Management fees are charged to the 
Administrative and General Cost Center. In some 
cases, however, a portion of a management fee 
may be allocated to a direct patient care cost 
center if time records are maintained to document 
the performance of direct patient care services. 
The amount so allocated may be equal only to the 
salary and fringe benefits of persons who are 
performing direct patient care services while 
employed by the management company. Records 
to support these costs shall be made available to 
staff of the Division of Medical Assistance. The 
of this allocation among facilities 
the North Carolina Medicaid 



basis 



_ this 

participating in 
program may be: 



ID 
12} 



specific time records of work 



performed at each facility, or 
client days in each facility to which the 
costs apply relative to the total client 
days in all facilities to which the costs 

apply. 

(s) The following costs are considered non- 
allowable facility costs because they are not related 
to client care or are specifically disallowed under 
the North Carolina State Plan: 
bad debts; 



01 



£3] 



(41 



advertising, except personnel want ads, 

and one line yellow page (indicating 

facility address); 

charity, courtesy allowances, discounts, 

refunds, rebates and other similar items 

granted by the provider; 

life insurance (except for employee 

group plans); 



(5} 

£6} 

ill 

im 
m 

(10) 
iLQ 

(12) 



(13) 



(14) 



(15) 



(16) 

iUl 
(18) 

(19) 



prescription drugs and insulin (available 

to recipients under the State Medicaid 

Drug Program); 

vending machine expenses; 

state or federal corporate income taxes, 

plus any penalties and interest; 

telephone, television, or radio for 

personal use of client; 

retainers, unless itemized services of 

equal value have been rendered: 

fines or penalties; 

ancillary costs that are billable to 

Medicare or other third party payors; 

property taxes and other expenses 

related to real estate deemed by the 

Division of Medical Assistance to be in 

excess of the reasonable amount needed 

for the physical facility; 

property taxes, insurance, maintenance 

and other expenses related to facility 

costs deemed by the Division of 

Medical Assistance to be in excess of 

the reasonable amount necessary for 

quality client care; 

costs associated with 



lawsuits filed 

against the Department of Human 

Resources which are not upheld by the 

courts; 

personal use of company assets 

resulting in unreasonable levels of 

compensation; 

meals provided to employees; 

charitable contributions; 

costs related to excessive or 

unnecessary levels of care; 

interest associated with Medicaid 

overpayment repayment plans agreed to 

by both the provider and the Division 

of Medical Assistance; 

(20) costs related to frivolous appeals; 

(21) costs resulting from provider 
negligence; 

(22) costs related to any illegal activity; 

(23) costs disallowed on the associated tax 
return by the Internal Revenue Service 
or the North Carolina Department of 
Revenue, unless specifically allowable 
under this plan; 

(24) promotional items designed to promote 
the provider's public image; 

(25) costs associated with the interests of 
provider shareholders and not direct 
care related; 

(26) costs related to client care incurred in 
prior years, unless specific approval 



8:9 



NORTH CAROLINA REGISTER 



August 2, 1993 



729 



PROPOSED RULES 



acquired from the Division of Medical 
Assistance; 
(27) country club dues, 
(t) Providers shall use a competitive bidding 
process in order to purchase or lease vehicles. 

(1) Providers shall explore cost differentials 
between leasing and purchasing of 
vehicles and shall choose the least 
expensive alternative. 

(2) Daily logs detailing the use of vehicles 
shall be maintained by the provider. 

(u) Purchase of services, major renovations, 
capital equipment, and supplies that exceed Five 
thousand dollars ($5.000) annually shall be made 
through a competitive bidding process or a request 
for proposal process. A bid may be obtained for 
a maximum of three years. Facilities shall not 
purchase in a piece meal fashion to avoid the five 
thousand dollars ($5.000) limit. Purchases without 
bids shall be based upon sole source justification 
supported by documentation of the uniqueness or 
the limited availability of services. Failure to 
execute this bidding process may result in the costs 
of the applicable goods and services being 
disallowed for Medicaid reimbursement purposes. 

(v) Reasonable costs associated with self- 
insurance programs are allowable, as determined 
by the Division of Medical Assistance. All 
material facts related to said programs shall be 
disclosed to the Division of Medical Assistance. 
Failure to disclose may result in the disallowance 
of said costs. 



Authority- G.S. 108A-25(b): 108A-54; 108A-55; 
S.L. 1985. c. 479. s. 86; 42 CFR 447, Subpart C. 

.0306 PAYMENT ASSURANCE 

(a) The State shall pay each provider of ICF-MR 
services, who furnishes the services in accordance 
with the requirements of the State Plan and the 
Participation agreement, the amount determined 
under the plan. 

(b) In no case shall the payment rate for services 
provided under the plan exceed the facility's 
customary charges to the general public for such 
services. 

(c) The payment methods and standards set forth 
herein are designed to enlist the participation of 
any provider who operates a facility both 
economically and efficiently. Participation in the 
program shall be limited to providers of service 
who accept, as payment in full, the amounts paid 
in accordance with the State Plan. This 
reimbursement plan is effective consistent with and 
on approval of the State Plan for Medical 



Assistance. 

(d] In all circumstances involving third party 
payment. Medicaid is the payor of last resort. 

(e) The State may withhold payments to 
providers under the following circumstances: 

(1) If the State has an expectation that the 
provider will not expend the total 
prospective rate for reasonable and 
allowable patient care costs, the State 
may, at its discretion, withhold a 
portion of each payment so as to avoid 
a large amount due back to the State. 

(2) Upon provider termination from the 
Medicaid Program the State may 
withhold a sum of money from provider 
payments that it reasonably expects will 
be due when final reimbursement 
settlements for all previous periods, 
including the period in which the 
termination occurred, are completed. 

(3) Upon determination of any sum due the 
Medicaid Program or upon instruction 
from a legally authorized agent of State 
or Federal Government, the State may 
withhold sums to meet the obligations 
identified. 

(4) Upon written request of the provider, 
and with good cause shown, the 
Division of Medical Assistance may 
approve a repayment schedule in lieu of 
withholding funds. 

(5) The State may withhold up to 20 
percent per month of a provider's 
payment for failure to file a timely cost 
report or other relevant information 
related to a facility's operation and 
requested by the Division of Medial 
Assistance. These funds shall be 
released to the provider after the cost 
report or the related information 
requested by the Division of Medical 
Assistance is acceptably filed. The 
provider shall experience delayed 
payment while the check is routed to 
the State and split for the amount 
withheld. 

Authority G.S. W8A-25(b); 108A-54; 108A-55; 
S.L. 1985, C.479, s. 86; 42 CFR 447, Subpart C. 

.0307 REIMBURSEMENT METHODS 
FOR STATE-OPERATED 
FACILITIES 

(a) A certified State-operated ICF-MR facility is 
reimbursed for the reasonable costs that are 



730 



8:9 



NORTH CAROLINA REGISTER 



August 2, 1993 



PROPOSED RULES 



necessary to efficiently meet the needs of its clients 
and to comply with federal and state laws and 
regulations. Payments shall be suspended if 
annual reports are not filed. The Division of 
Medical Assistance may extend the deadline for 
filing the report if in its view good cause exists for 
the delay. The reasonableness and allowability of 
costs incurred by state-operated facilities shall be 
determined by the Division of Medical Assistance. 

(b) A E^ diem rate based on the provider's 
estimated annual cost divided by patient days shall 
be used to make interim payments. A tentative 
settlement shall be issued based on the desk audit 
performed on each annual cost report to determine 
the amount of Medicaid reasonable cost and the 
amount of interim payments received by the 
provider. 

(c) Any payments in excess of costs shall be 
refunded to the Division of Medical Assistance. 
Any reasonable costs in excess of payments shall 
be paid to the provider. An annual field audit may 
be performed by a qualified independent auditor to 
determine the final settlement amounts. 

Authority G.S. 108A-25(h): 108A-54; 108A-55; 
S.L. 1985, c. 479, s. 86; 42 CFR 447, Subpart C. 

.0308 RATE APPEALS 

(a) The Division of Medical Assistance shall 
consider only the following appeals for adjustment 
to the rates which would result in an annual rate 
increase to the provider from the Medicaid 
Program of one thousand dollars ($1,000) or more. 

(1) Appeals because of changes in the 
information used to calculate a facility's 
prospective rate. 

(2) Appeals for significant increases or 
decreases in a facility's overall base 
period operating costs due to, but not 
limited to, implementation of new 
programs, changes in staff or service, 
changes in the characteristics or number 
of clients, changes in a financing 
agreement, capital renovations, 
expansions or replacements which have 
been either mandated or approved by 
the Division of Medical Assistance and, 
except in life-threatening situations. 



£3} 



approved in advance by the applicable 
State agencies. 

In order for said changes to be 
considered, they shall be consistent 
with all of the provisions of this plan. 
Effective July \_^ 1994. an appeal shall 



not be granted unless the provider can 



demonstrate that it is necessary for the 
financial stability of the provider and is 
needed by the provider in order to 
deliver proper levels of service to it 
clients, under Medicaid guidelines. 
Absent strong convincmg evidence to 
the contrary, a provider's ability to 
provide services at a cost equal to or 
below the approved rate, as reflected on 
the most recent annual cost report, 
demonstrates financial stability and the 
lack of need for a rate increase. 

(4) Upon proper notification to the provider 
in writing, the Division of Medical 
Assistance may instigate a proceeding 
to reduce the provider's rates. A rate 
reduction proceeding may be initiated 
upon the determination of just cause by 
the Division of Medical Assistance. 
Grounds for just cause may include, but 
are not limited to, the following: 

£A} The provider has achieved material 
over collections of Medicaid funds 
derived from the prospective rate 
being greater than reasonable 
Medicaid costs. 

(B) Changes in Federal or State laws or 
regulations resulting in material 
operational cost savings. 

(C) Material changes in client profile 
resulting in the need for less costly 
services. 

(D) The burden of proof shall be on the 
Division of Medical Assistance to 
prove the need for said rate reduction. 

(5) In determining a fair and reasonable 
rate under appeal, the Division of 
Medical Assistance shall take into 
consideration all funds available to the 
provider. Providers are expected to 
utilize all available funds to provide the 
services that their clients need. 

(6) Reasonable occupancy factors, as 
established by the Division of Medical 
Assistance, shall be utilized in 
establishing fair and reasonable rates in 
the appeal process. 

(7) Prospective rates determined under the 
rate appeal mechanism may be applied 
retroactively to the later of the 
beginning of the rate year in which said 
appeal was filed, or the date of 
certification of the related facility, or 
the effective date during the facility's 
current rate year of the item(s) that 



8:9 



NORTH CAROLINA REGISTER 



August 2, 1993 



731 



PROPOSED RULES 



caused the need for the change in rates . 
(8) The Division of Medical Assistance 
shall not pay interest on the final dollar 
settlement resulting from the retroactive 
impact of any rate appeals. 

(b) Notification of appeal: 

(1) In order to appeal a rate the facility 
shall send to the Division of Medical 
Assistance an appeal application in 
writing either within 60 days of the 
facility receiving the rate computation 
or within 60 days of the beginning of 
the rate period in question. 

(2) The appeal application shall set forth 
the basis for the appeal and the issues 
of fact. Appropriate documentation 
shall accompany the application and the 
Division of Medical Assistance may 
request in writing such additional 
documentation as it deems necessary. 

(c) The burden of proof on appeal shall be on 
the facility to present clear and convincing 
evidence to demonstrate the rate requested in the 
appeal is necessary to ensure efficient and 
economical operation, and meets the criteria of this 
Rule. 

(d) There shall be a written notification by the 
Division of Medical Assistance of the final 
decision on the facility's rate appeal . However, at 
no point in the appeal process shall the facility 
have a right to an interim report of any 
determinations made by any of the parties to the 
appeal . 

Authority G.S. 108A-25(h); 108A-54; 108A-55: 
S.L. 1985. c. 479. s. 86; 42 CFR 447. Subpart C. 

.0309 AUDITS 

(a) Each facility shall maintain the statistical and 
financial records which formed the basis of the 
reports required by this Rule and submitted to the 
Division of Medical Assistance for five years from 
the date on which the reports were submitted or 
due, whichever is later, or for such longer periods 
as may be required under State or Federal law. 
Each cost report shall be verified by the state 
agency or its representative for completeness, 
accuracy, and reasonableness through a desk audit. 
Field audits shall be performed as required. When 
a combined cost report is filed under this plan, 
only the combined cost report is subject to desk 
and field audit, unless the Division of Medical 
Assistance determines that the supporting individu- 
al facility cost reports need to be audited. 

(b) All such records shall be subject to audit for 



a period of five years from the later of the date on 
which all required reports were filed with the 
Division of Medical Assistance or the date on 
which such reports were due. 

(1) Desk or field audits shall be conducted 
by the Division of Medical Assistance, 
its designated contract auditors, or 
other governmental agencies at a time 
and place and in a manner determined 
by said governmental agencies. 

(2) The audits may be performed on any 
financial or statistical records required 
to be maintained. 

(3) Any findings of a described audit of 
this Rule shall constitute grounds for 
recoupment at the discretion of the 
Division of Medical Assistance, provid- 
ed that such audit finding relates to the 
allowable costs. 

(c) All filed cost reports shall be desk audited 
and tentative settlements made in accordance with 
the provisions of this plan. This settlement is 
issued within 180 days of the date the cost report 
was filed or within 272 days of the end of the June 
30 fiscal year reflected in the cost report, whichev- 
er is later. The state may elect to perform field 
audits on any filed cost reports within three years 
of the date of filing and issue a final settlement on 
a time schedule that conforms to Federal law and 
regulation. If the state decides not to field audit a 
facility a final reimbursement notice may be issued 
based on the desk audited settlement. The state 
may reopen and field audit any cost report after 
the final settlement notice in order to comply with 
Federal law and regulation or to enforce laws and 
regulations prohibiting abuse of the Medicaid 
Program and particularly the provisions of this 
reimbursement plan. These changes to the Payment 
for Services Prospective Reimbursement Plan for 
ICF-MR Facilities will become effective when the 
Health Care Financing Administration. U.S. 
Department Health and Human Services, approves 
amendment submitted to HCFA by the Director of 
the Division of Medical Assistance on or about 
July 1. 1993 as ;/MA 93-12. wherein the Director 
proposes amendments of the State Plan to amend 
Payment for Services - Prospective Reimburse- 
ment Plan for ICF-MR Facilities . 

Authority G.S. 108A-25(h): 108A-54: 108A-55: 
S.L. 1985. c. 479. s. 86: 42 C.F.R. 447. Subpart 
C. 



732 



8:9 



NORTH CAROLINA REGISTER 



August 2, 1993 



PROPOSED RULES 



:Je3]e:ic%9)cH<^>{'9i'^^ 






jyiotice is hereby given in accordance with G.S. 
150B-21.2 that the Social Services Commission 
intends to adopt rules cited as 10 NCAC 42B 
.2401; 42D .1826; and amend rules cited as 10 
NCAC 42C .2004, .2302. .2402. .2501. .3601; 
49E .0002. 

1 he proposed effective date of this action is 
December 1, 1993. 

1 he public hearing will be conducted at 10:00 
a.m. on September 2, 1993 at the Albemarle Bldg. , 
Room 943-2, 325 N. Salisbury St. , Raleigh, N. C 

Keason for Proposed Action: 
10 NCAC 42B .2401; 42C .2004, .2302, .2402, 
.2501, .3601; 42D .1826 - To adopt and amend 
rules which were recommended by Domiciliary 
Care Rules Review Committee. 
10 NCAC 49E .0002 - To bring rules into compli- 
ance with current procedures and the approved 
Title IV-A State Plan. 

i^omment Procedures: Comments may be pre- 
sented in writing any time before or at the public 
hearing or orally at the hearing. Time limits for 
oral remarks may be imposed by the Commission 
Chairman. Any person may request copies of 
these Rules by calling or writing to the Special 
Assistant, Division of Social Services, 325 N. 
Salisbury St. , Raleigh, NC 27603, (919) 733-3055. 



CHAPTER 42 



INDIVIDUAL AND FAMILY 
SUPPORT 



SUBCHAPTER 42B - LICENSING OF 

HOMES FOR DEVELOPMENT ALLY 

DISABLED ADULTS 

SECTION .2400 - ADMINISTRATIVE 
PENALTY DETERMINATION PROCESS 

.2401 ADMINISTRATIVE PENALTY 
DETERMINATION PROCESS 

10 NCAC 42C .3601 shall control for this 
Subchapter. 

Statutory Authority G.S. 131D-2; 131D-34; 
143B-153. 



SUBCHAPTER 42C - LICENSING OF 
FAMILY CARE HOMES 

SECTION .2000 - PERSONNEL 

.2004 GENERAL HEALTH 
REQUIREMENTS 

(a) The administrator must hav e a modioal 
e xamination, including n e o e ooary toots shall be 
tested for tuberculosis-? disease within 50 90 days 
before employment and annually thereafter . Tbe 
Form DSS 186 4 is to b e uo e d to r e cord th e results. 
Annually thereafter, the admini s trator is to und e r 
go th e n e c e ssary t e sts for tub e rculosis and verify 
to th e county d e partm e nt of social s ervic e s that h e 
There shall be documentation on file in the home 
that the administrator is free of tuberculosis ta-a 
communicabl e stag e using a r e cord d e signated by 
th e Division of Social S e rvic e s disease that poses 
a direct threat to the health or safety of others . 

(b) Th e sup e rvisor in charg e mu s t have a modi 
oal e xamination, including th e n e c e ssary t e sts for 
tub e rculosis, within 30 days b e for e or s e ven days 
aft e r e mployment. — Th e Form DSS 1 8 6 4 is to b e 
us e d to r e cord th e r e sults. Annually th e r e aft e r, th e 
sup e rvisor in charg e is to und e rgo th e n e c e ssary 
t e sts for tub e rculosis and v e rify to the county 
d e partm e nt of social s e rvic e s that h e is fr ee of 
tub e rculosis in a communicabl e stag e using a 
r e cord d e signat e d by the Division of Social S e rvio 
esr 

(b) fe) All other staff and live-in non-residents 
must und e rgo th e n e c e ssary t e sts shall be tested for 
tuberculosis disease within 30 90 days before or 
seven days after employment or living in the 
home, and annually thereafter. There must shall 
be documentation on file in the home that each 
person is free of tuberculosis in a communicabl e 
stage using a r e cord d e signat e d by the Division of 
Social S e rvices disease that poses a direct threat to 
the health or safety of others . 

(4) — Th e Divi s ion of Facility Services and th e 
county department of social s e rvic e s may jointly 
r e qu e st at any tim e a m e dical or psychological 
e xamination of any staff member or liv e in person. 
This may b e don e wh e n in th e ir judgm e nt th e 
p e r s on, du e to a physical or m e ntal condition, is 
not ad e quat e ly p e rforming hi s r e quired duti es , is 
j e opardizing the health of oth e rs living in th e 
hom e , or is adv e rs e ly aff e cting the p e rformanc e of 
s taff duti e s. Note: Th e n e c e ssary te s ts fortubercu 
losis ar e thos e r e commend e d by th e Division of 
H e alth Sorvioo s for staff in high risk s e ttings. Th e 
local — h e alth — d e partm e nt — may — be — contact e d — te 
provid e n e c e ssary' tuberculosis scr ee ning. 



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733 



PROPOSED RULES 



(c) Tests for tuberculosis disease shall comply 
with the control measures adopted by the Commis- 
sion for Health Services as specified in 15A 
NCAC 19A .0205 including subsequent 
amendments and editions. Copies of the rule are 
available at no charge by contacting the 
Department of Environment, Health, and Natural 
Resources. Tuberculosis Control Branch. Post 
Office Box 27687. Raleigh. North Carolina 
27611-7687. 

Statutory Authority G.S. 131D-2; 143B-153. 

SECTION .2300 - SERVICES 

.2302 HEALTH CARE 

(a) The administrator is responsible for 
providing occasional or incidental medical care, 
such as providing therapeutic diets, rotating 
positions of residents confined to bed, and 
applying heat pads. 

(b) The resident or his responsible person is to 
be allowed to choose a physician to attend to him. 

(c) Immediate arrangements must be made by 
the administrator with the resident or his 
responsible person for the resident to secure 
another physician when he cannot remain under 
the care of his own physician. The name, address 
and telephone number of the resident's physician 
is to be recorded on Form DSS 1 8 65, the Resident 
Register. 

(d) If a resident is hospitalized, a completed 
FL-2 or patient transfer form must be obtained 
before the resident can be readmitted to the 
facility. 

(e) Between annual medical examinations there 
may be a need for a physician's care. The Form 
DSS 1 8 67 — ef — an — e quival e nt resident's health 
services record is to be used by the physician to 
report any drugs prescribed and any treatment 
given or recommended for minor illnesses. 

(f) All contacts (office, home or telephone) with 
the resident's physician are to be recorded on 
Form DSS 1 8 67 or an equival e nt the resident's 
health services record which is to be retained in 
the resident's record in the home. The physician's 
orders muot shall be included in the resident's 
health services record used for th e r e sid e nt, as 
follows: including telephone orders initialed by 
staff and signed by the physician within 30 days 
from the date the order is given. 

{\^ Wh e n th e r e sid e nt is e xamin e d in th e 

physician's offio e . th e health oorvioos 
r e oord i s to bo tak e n and th e physioion 
is to add all ncxs e ssary information; 



^3) Wh e n — the — physician — e xamin e s — tbe 

r e sid e nt in th e hom e , th e physician is to 
add all n e c e ssary information into the 
health sorvioos r e oord; and 

^%) Wh e n a physician's order is giv e n by 

t e l e phon e , tbe — administrator — ef 

sup e rvisor in charge — must — e nt e r — tbis 

into th e h e alth s e rvic e s r e oord, initial it 

and hav e th e physician sign it within 30 

days from th e dat e th e order is given. 

(g) The use of a physical restraint refers to the 

application of a mechanical device to a person to 

limit movement for therapeutic or protective 

reasons, excluding siderails for safety reasons. 

Residents shall be physically restrained only as 

provided for in the Declaration of Residents' 

Rights. G.S. 131D-21 (5), and in accordance with 

the following: 

(1) The use of physical restraints is allowed 
only with a written order from a 
licensed physician. If the order is 
obtained from a physician other than 
the resident's attending physician, the 
attending physician shall be notified of 
the order within seven days. 

(2) In emergency situations the 
administrator or supervisor-in-charge 
shall make the determination relative to 
necessity for the type and duration of 
the physical restraint to use until a 
physician is contacted. Contact shall be 
made within 24 hours. 

(3) The physician shall specify In the 
restraint order the medical need for the 
physical restraint, the type to be used, 
the period of time it is to be used, and 
the time intervals it is to be checked, 
loosened, or removed. 

(4) The current order for the physical 
restraint shall be on or attached to 
Form FL-2 or Form MR-2 (upon 
entering the home) or the Report of 
Health Services to Residents Form, or 
approved equivalent (for subsequent 
orders). 

(5) The physician ordering the physical 
restraint shall update the restraint order 
at a minimum of every six months. 

(6) If the resident's physician changes after 
admission to the home, the physician 
who is to attend the resident shall 
update and sign the existing restraint 
order. 

(h) The administrator must have specific written 
instructions recorded as to what to do in case of 



734 



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PROPOSED RULES 



sudden illness, accident, or death of a resident. 

(i) There must be an adequate supply of first aid 
supplies available in the home for immediate use. 

(j) The administrator must make arrangements 
with the resident, his responsible person, the 
county department of social services or other 
appropriate party for appropriate health care as 
needed to enable the resident to be in the best 
possible health condition. 

Statutory Authority G.S. 131D-2; 143B-153. 

SECTION .2400 - ADMISSION POLICIES 

.2402 MEDICAL EXAMINATION 

(a) Each resident must shall have a medical 
examination including th e n e c e ssary' t e sts and be 
tested for tuberculosis-? disease before admission 
and annually thereafter. Th e n e o e ssary t e sts for 
tuboroulooio — are — thos e — rooom mended — by — the 
Division of H e alth S e rvic e s for r e sid e nts in high 
risk oettingo. Tests for tuberculosis disease shall 
comply with the control measures adopted by the 
Commission for Health Services as specified in 
15A NCAC 19A .0205 including subsequent 
amendments and editions. Copies of the rule are 
available at no charge by contacting the 
Department of Environment, Health, and Natural 
Resources, Tuberculosis Control Branch, Post 
Office Box 27687, Raleigh, North Carolina 
27611-7687. 

(b) The results of the complete examination are 
to be entered on Form FL-2 or MR-2. The 
examining date recorded on the FL-2 or MR-2 
must be no more than 90 days prior to the person's 
admission or readmission to the home. The FL-2 
or MR-2 must be in the facility before admission 
or readmission or accompany the resident upon 
admission or readmission and be reviewed by the 
administrator or supervisor-in-charge before 
admission or readmission. If the information on 
the form is not clear or is insufficient, the 
administrator or supervisor-in-charge must contact 
the physician for clarification in order to determine 
if the services of the facility can meet the 
individual's needs. The completed Form FL-2 or 
MR-2 must be filed in the resident's record in the 
home. 

(c) The administrator must make arrangements 
for any resident, who has been an inpatient of a 
psychiatric facility within 12 months before 
entering the home and who does not have a current 
plan for psychiatric care, to be examined by a 
local physician or a physician in a mental health 
center within 30 days after admission and to have 



a plan for psychiatric follow-up care when 
indicated, using Form DSS-1867 or an equivalent 
record. 

Statutory Authority G.S. 131D-2; 143B-153. 

SECTION .2500 - DISCHARGE POLICIES 

.2501 OTHER LIVING ARRANGEMENTS 

The administrator must discuss with the resident 
and his responsible person ef the need to make 
other plans for the resident when: 

(1) The resident's physician indicates the 
resident's condition has improved to the 
point he can live outside a domiciliary 
facility with family or community support 
services; 

(2) The resident's physician certifies that the 
resident needs professional nursing care 
or intermediate care under medical 
supervision. In this situation, plans for 
other placement must be made as soon as 
possible and the county department of 
social services will assist the 
administrator or resident in making 
arrangements for necessary care when 
requested; 

(3) The resident's condition is such that he is 
a danger to himself or poses a direct 
threat to the health or safety of others; 

(4) The resident makes a written request or 
otherwise indicates an earnest desire to 
transfer to another licensed home; and 

(5) The resident's adjustment to the home is 
not satisfactory as determined by the 
administrator and the resident or his 
responsible person. This is only to be 
done after a reasonable period of time 
during which the resident was provided 
help with adjusting to the home. It is the 
responsibility of the administrator to 
contact the resident's responsible person 
and the county department of social 
services and request assistance to help the 
resident in adjusting. This request is to 
be made at the first indication of an 
adjustment problem. 

Statutory Authority G.S. 131D-2: 1 438-1 53. 

SECTION .3600 - ADMINISTRATIVE 
PENALTY DETERMINATION PROCESS 

.3601 ADMINISTRATIVE PENALTY 
DETERMINATION PROCESS 



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PROPOSED RULES 



(a) The county department of social services 
shall identify areas of non-compliance resulting 
from an investigation or monitoring visit which 
may be violations of residents' rights contained in 
G.S. 131D-21 or rules contained in this 
Subchapter. If the county department decides to 
recommend an administrative penalty as defined in 
G.S. 131D-34 , it shall prepare a Negative Action 
Propooal an administrative penalty proposal for 
submission to the Division of Facility Services^ 
Group Car e Faoilitiee Branch . The proposal shall 
include documentation that the facility 
administrator was notified of the county 
department's intent to prepare and forward a 
negativ e aotion proposal an administrative penalty 
proposal to the Division of Facility Services; 
offered an opportunity to provide additional 
information prior to the preparation of the 
proposal; after the proposal is prepared, given a 
copy of the contents of the proposal; and then 
extended an opportunity to request a local 
conference with the county department, allowing 
the administrator 10 days to respond prior to 
forwarding the proposal. The conference, if 
requested, shall include county department 
management staff. The administrator may request 
a conference and produce information to cause the 
county department to change its proposal. The 
county may rescind its proposal; or change its 
proposal and submit it to the Group Car e Faciliti e s 
Branch; Division of Facility Services or submit it 
unchanged to the Group Car e Faoiliti e e Branch 
Division . The branch shall r e vi e w th e proposal 
and forward it to the proposal shall be reviewed by 
the Division's Internal Review Committee. 

(b) The Internal Review Committee shall be 
comprised of three members: 

(1) The assistant deputy chief of the 
Medical Facilities Licensure Section, or 
a person designated by the chief of the 
Medical Facilities Licensure Section, 
who shall serve as chairman; 

(2) Th e h e od of th e Group Car e Faciliti e s 
Branch or a A person designated by the 
chief of the Lic e nsur e Domiciliary and 
Group Care Section; and 

(3) A third party selected by the chi e f of 
th e Lioenpure S e ction deputy director of 
the Division of Facility Services . 

(c) The Division of Facility Services shall notify 
the administrator by certified mail within 10 
working days from the time the proposal is 
received by the Internal Review Committee that an 
administrative penalty is being considered. 

(d) The administrator shall have 10 working 



days from receipt of the notification to provide the 
Division and the county department of social 
services any additional written information relating 
to the proposed administrative penalty. Any 
information provided shall be considered by the 
Internal Review Committee. The administrator 
shall have five working days from receipt of the 
notification to advise the Division as to whether 
the administrator, and authorized representative or 
both plan to meet with the Internal Review 
Committee. 

(e) If the administrator chooses to attend the 
meeting as provided in Paragraph (d) of this Rule, 
the Division shall notify representatives of the 
county department of social services and the 
Division of Aging of the administrator's plans to 
meet with the Committee or any change in the date 
or time of the meeting. The agency that conducted 
the investigation shall be responsible for notifying 
the complainant, if any. The complainant, if any, 
may attend the meeting relating to his or her 
complaint. 

(f) The Internal Review Committee shall review 
all N e gativ e — Aotion — Proposals administrative 
penalty proposals , any supporting evidence, and 
any additional information provided by the 
administrator that may have a bearing on the 
proposal such as documentation not available 
during the investigation or monitoring visit, action 
taken to correct the violation and plans to prevent 
the violation from recurring. 

(g) There shall be no taking of sworn testimony 
nor cross-examination of anyone during the course 
of Internal Review Committee meetings. 

(h) Time shall be allowed during the Internal 
Review Committee meetings for individual 
presentations, the total for which shall normally be 
one hour for each facility where the violations took 
place, but shall not exceed two hours. The 
amount of time allowed, up to two hours, shall be 
at the discretion of the Internal Review Committee 
chair. The order in which presenters shall speak 
and length of presentations shall be at the 
discretion of the chair. 

(i) If it is determined that the administrator has 
violated applicable rules or statutes, the Internal 
Review Committee shall recommend an 
administrative penalty type and amount for each 
violation pursuant to G.S. 131D-34. The Division 
shall notify the administrator and the county 
department of social services by certified mail of 
the Committee's decision within five working days 
following the Internal Review Committee meeting. 
Copies of the letter to the administrator shall be 
forwarded by the Division to all parties involved 



736 



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August 2, 1993 



PROPOSED RULES 



with the penalty recommendation. The agency that 
conducted the investigation shall be responsible for 
notilying the complainant, if any. 

(j) If the recommended penalty is classified as 
Type B but is not a repeat violation (as defined by 
G.S. 131D-34), the administrator may accept the 
recommendation and notify the Division by 
certified mail within five working days following 
receipt of the recommendation. If the penalty is 
accepted, the administrator has 60 days from 
receipt of the recommendation to pay the penalty. 

(k) If the recommended penalty is a Type A 
violation; is a Type B violation that has been cited 
during the previous 12 months; or is a Type B 
violation as provided in Paragraph (i) of this Rule 
but is not accepted by the administrator, the 
Internal Review Committee shall forward to the 
Penalty Review Committee the penalty 
recommendation, the rationale for the 
recommendation and all information reviewed by 
the Internal Review Committee. 

(1) The Penalty Review Committee may agree 
with or recommend changes to the Internal Review 
Committee's recommendations. If the 

recommendations are different from those of the 
Internal Review Committee, the Division shall 
attempt to notify the administrator the day of the 
Penalty Review Committee meeting. 

(m) Recommendations by the Penalty Review 
Committee shall be forwarded to the Chief of 
Lic e nsur e the Domiciliary and Group Care Section 
who shall have five working days from the date of 
the Penalty Review Committee meeting to 
determine and impose administrative penalties for 
each violation as provided by G.S. 131D-34 and 
notify the administrator by certified mail. 

(n) The administrator shall have 60 days from 
receipt of the notification to pay the assessment or 
30 days to appeal the decision as provided by G.S. 
131D-34. The Division shall notify the Attorney 
General's Office of any outstanding assessments. 

Statutory Authority^ G.S. 131D-2; 13W-34: 
143B-153. 

SUBCHAPTER 42D - LICENSING OF 
HOMES FOR THE AGED AND INFIRM 

SECTION .1800 - REMAINING POLICIES 
AND REGULATIONS 

.1826 ADMINISTRATIVE PENALTY 
DETERMINATION PROCESS 

10 NCAC 42C .3601 shall control for this 
Subchapter. 



Statutory Authority G.S. 131D-2; 131D-34; 
143B-153. 

CHAPTER 49 - AID TO FAMILIES WITH 
DEPENDENT CHILDREN (AFDC) 

SUBCHAPTER 49E - UNEMPLOYED 
PARENT PROGRAM 

.0002 COVERAGE AND PARTICIPATION 

(a) For purposes of the Unemployed Parent 
Program, a dependent child is a needy child who 
is living with his mother and father who ar e 
l e gally marri e d to e ach oth e r, as r e quired by G.S. 
10 8 A 2 8 , in a place of residence maintained by 
them as their own home; and who is under age 18 
or under age 19 and a full-time student in a 
secondary school (or in the equivalent level of 
vocational or technical training), if, before he 
attains age 19, he may reasonably be expected to 
complete the program of such secondary school (or 
such training). 

(b) Assistance shall not be continued for a 
temporary period when the principal earner returns 
to work. 

(c) Assistance shall not be provided for an 
assistance unit when the principal wage earner is 
unemployed by reason of conduct or circumstances 
which result in disqualification for unemployment 
compensation under the state's unemployment 
compensation law. 

Statutory Authority G.S. 108A-28; 143B-153; 
Chapter 738, 1987 Session Laws. 

TITLE 11 - DEPARTMENT OF 
INSURANCE 

fSotice is hereby given in accordance with G.S. 
150B-2L2 that the N. C. Department of Insurance 
intends to adopt rule cited as 11 NCAC 15 .0011. 

1 he proposed effective date of this action is 
November 1, 1993. 

1 he public hearing will be conducted at 2:00 
p.m. on August 18, 1993 at the Medical Database 
Commission, 112 Cox Avenue, Raleigh, N.C. 
27611. 

Jxeason for Proposed Action: To establish fees 
for the distribution of data as required by statute. 



8:9 



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737 



PROPOSED RULES 



(comment Procedures: Written comments may be 
sent to Jim Hazelrigs, Medical Database Commis- 
sion. 112 Cox Avenue, Raleigh. N.C 27605. 
Anyone having questions should callJim Hazelrigs 
at' (919) 733-7141, or Ellen Sprenkel at (919) 
733-4529. 

CHAPTER 15 - MEDICAL DATABASE 
COMMISSION 

.0011 FEES AND CHARGES FOR DATA 

(a) The fees for the following reports generated 
by the Commission are as follows: 

$ 15 State and County' Profiles of 

Hospital Inpatient Utilization 

$30 ORG Utilization and Charges by 

Hospital: A Reference Book 

$ 15 A Summary Guide to Hospital 

Utilization and Charges 

$ 10 Primary Payer Summary Statistics 

by Hospital 

$20 Patient Origin Report 

$ 20 Hospital Inpatient Surgical Proce- 

dures Report 

$100 Complete set of the six reports 

named in this Paragraph 

(b) The fees for the following personal computer 
(PC) products generated by the Commission are as 
follows: 

$375 PCIA: Diskette File of ORG 

Utilization and Charges by Hospi- 
tal 

$750 PC IB: Diskette File of DRG 

Utilization and Charges by Hospi- 
tal by Payer Category 

$375 PC2: Diskette File of Zi£ Code 

Patient Origin by Hospital 

(c) Special data requests may be performed by 
commission staff based upon specifications devel- 
oped for each project. The charges for special 
data requests are as follows: 

(I) The full costs charged to the Commis- 
sion by others in\'olved in completing 
the request: 

(A) data processing contractor or the State 
Data Center; 

(B) any consultant or other contractor 
involved in the process. 

£2} Twenty'-five dollars ($25.00) per hour 
time of a research analyst or other 



member of the Commission staff work- 



ing on the project. 

(3) A charge for the use of the medium on 
which the product will be delivered, 
paper at ten cents ($0. 10) per page, 
diskettes at two dollars ($2.00) each, 
and tape at the current cost to the Com- 
mission. 

(4) A charge for the cost of delivering the 
product to the requestor: 

(A) Business envelopes at ten cents 
($0.10) each. 8" x 1 1" envelopes at 
seventy-five cents ($0.75) each, and 
boxes for mail of bulk materials at 
two dollars ($2.00) each. 

(B) U.S. Postal Service actual postage 
charges. 

(C) Express type mail services may be 
used, provided the Commission 
obtains the account number of the 
requestor and charges the special 
delivery to the requestor's account. 
The Commission will not include this 
as part of the invoice for the product. 

(d) Materials may be transmitted via facsimile 
for one dollar ($1.(X)) per page for faxing with a 
minimum fax charge often dollars ($10.00). This 
includes faxing to a long distance number in the 
continental United States . Faxing to Alaska. 
Hawaii, U.S. territories, and foreign countries 
shall not be done by the Commission. The 
Commission will not fax more than 30 pages of 
data. 

(e) The Commission shall charge twenty-five 
dollars ($25. (X)) for the standard mailing list and 
thirty dollars ($30. (X)) if the mailing list is 
formatted to other than standard format at the 
request of the purchaser of the list. 

(f) The Commission shall charge the proper 
sales tax on all materials sold under this Rule. 

Statutory Authority G.S. 1 31E-21 1 (k); 
131E-212(b)(7). 

TITLE 12 - DEPARTMENT 
OF JUSTICE 

jy/otice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Sheriffs ' Educa- 
tion and Training Standards Commission intends to 
amend rules cited as 12 NCAC lOB . . 0103. . 0105. 
. 0201 . . 0204 - . 0205. . 0301 . . 0305. . 0402 - . 0403. 
. 0406. . 0408 - . 0409. . 0503. . 0505. . 0602 . . 0606, 
.0704. .0901. .0904. .0906. .0909. .1003. .1005. 



738 



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PROPOSED RULES 



.1205, .2104; and repeal rule cited as 12 NCAC 
1 OB .0902. 

1 he proposed effective date of this action is 
January 1, 1994. 

1 he public hearing will be conducted at 9:00 
a.m. on September 14, 1993 at the FOP Lodge, 
Test Farm Road, Waynesville, North Carolina. 

Jxeasonfor Proposed Action: 

12 NCAC lOB .0103, .0105, .0201, .0204 - 

.0205, .0301, .0305, .0402 - .0403, .0406, .0408 

- .0409, .0503, .0505, .0602, .0606, .0704, .0901, 
.0904, .0906, .0909, .1003, .1005, .1205, .2104 

- To make various technical changes for purposes 
of updating and clarifying existing rules. 

12 NCAC lOB .0902 - The North Carolina 
Sheriffs' Education and Training Standards 
Commission has adopted, by reference, in Rule 
.0901 the CriminalJustice Education and Training 
Standards Commission 's rule for physical fitness 
instructor. Therefore, this Rule is no longer 
needed by the North Carolina Sheriffs ' Education 
and Training Standards Commission. 

\^omment Procedures: Any person interested in 
these Rules may present oral or written comments 
relevant to the proposed action at the public rule 
making hearing. Written statements can be 
submitted beginning August 2, 1993 through 
September 14, 1993 and must be directed to the 
Sheriffs ' Standards Division. The proposed rules 
are available for public inspection and copies may 
be obtained at the following address: Dept. of 
Justice, Sheriffs' Standards Division, P.O. Box 
629, Raleigh, NC 27602-0629 

CHAPTER 10 - N.C. SHERIFFS' 

EDUCATION AND TRAINING STANDARDS 

COMMISSION 

SUBCHAPTER lOB - N.C. SHERIFFS' 

EDUCATION AND TRAINING STANDARDS 

COMMISSION 

SECTION .0100 - COMMISSION 
ORGANIZATION AND PROCEDURES 

.0103 DEFINITIONS 

In addition to the definitions set forth in G.S. 
17E-2, the following definitions apply throughout 



this Chapter, unless the context clearly requires 
otherwise: 

(1) "Appointment" as it applies to a deputy 
sheriff means the date the deputy's oath 
of office is administered, and as it applies 
to a jailer means either the date the 
jailer's oath of office was administered, 
if applicable, or the jailer's actual date of 
employment as reported on the Report of 
Appointment (Form F-4) by the 
employing agency, whichever is earlier. 

(2) "Convicted" or "Conviction" means and 
includes, for purposes of this Chapter, 
the entry of: 

(a) a plea of guilty; 

(b) a verdict of finding of guilt by a jury, 
judge, magistrate, or other duly 
constituted, established, and recognized 
adjudicating body, tribunal, or official, 
either civilian or military; or 

(c) a plea of no contest, nolo contendere, 
or the equivalent. 

(3) "Department Head" means the chief 
administrator of any criminal justice 
agency. Department head includes the 
sheriff or a designee formally appointed 
in writing by the Department head. 

(4) "Director" means the Director of the 
Sheriffs' Standards Division of the North 
Carolina Department of Justice. 

(5) "Division" means the Sheriffs' Standards 
Division. 

(6) "High School" means a school accredited 
as a high school by: 

(a) the Department or Board of Education 
of the state in which the high school is 
located; or 

(b) the recognized regional accrediting 
body; or 

(c) the state university of the state in which 
the high school is located. 

(7) "Enrolled" means that an individual is 
currently actively participating in an 
on-going formal presentation of a 
commission-accredited basic training 
course which has not been concluded on 
the day probationary certification expires. 

(8) "Essential Job Functions" means those 
tasks deemed by the agency head to be 
necessary for the proper performance of 
a justice officer. 

(9) "Lateral Transfer" means certification of 
a justice officer when the applicant for 
certification has previously held general 
or grandfather certification and has b ee n 



8:9 



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739 



PROPOSED RULES 



separat e d by an agenoy or transferr e d to 
anoth e r ag e ncy as a justice officer or a 
criminal justice officer as defined in G.S. 
17C-2(c), excluding state correctional 
officers, state probation/parole officers, 
and state youth services officers. 



provided the applicant has been separated 
from a c e rtifi e d sworn law enforcement 
position for no more than one year^. or 
has had no break in service . 
(10) "Misdemeanor" means those criminal 
offenses not classified by the North 
Carolina General Statutes, the United 
States Code, the common law, or the 
courts as felonies. Misdemeanor offenses 
are classified by the Commission as 
follows: 

(a) "Class A Misdemeanor" means an act 
committed or omitted in violation of 
any common law. duly enacted 
ordinance, criminal statute, or criminal 
traffic code of this state, or any other 
jurisdiction, either civil or military, for 
which maximum punishment allowable 
for the designated offense under the 
laws, statutes, or ordinances of the 
jurisdiction in which the offense 
occurred or its political subdivisions 
includes imprisonment for a term of not 
more than six months. Specifically 
excluded from this grouping of "class A 
misdemeanor" criminal offenses are 
motor vehicle or traffic offenses 
designated as misdemeanors under 
Chapter 20 (Motor Vehicles) of the 
General Statutes of North Carolina, 
similar laws of other jurisdictions, or 
duly enacted ordinances of an 
authorized governmental entity with the 
exception of the offense of impaired 
driving (G.S. 20-138.1) which is 
expressly included herein as a class A 
misdemeanor, if the defendant was 
sentenced under punishment level three 
[G.S, 20-179(i)], level four [G.S. 
20-1790)], or level five [G.S. 
20-179(k)]: 

(b) "Class B Misdemeanor" means an act 
committed or omitted in violation of 
any common law, criminal statute, or 
criminal traffic code of this state, or 
any other jurisdiction, either civil or 
military, for which the maximum 
punishment allowable for the designated 
offense under the laws and statutes of 



the jurisdiction in which the offense 
occurred includes imprisonment for a 
term of more than six months but not 
more than two years. Specifically 
excluded from this grouping of "class B 
misdemeanor" criminal offenses are 
motor vehicles or traffic offenses 
designated as being misdemeanors 
under Chapter 20 (Motor Vehicles) of 
the General Statutes of North Carolina 
or similar laws of other jurisdictions 
with the following exceptions. Class B 
misdemeanor does expressly include, 
either first or subsequent offenses of 
G.S. 20-138(a) or (b), G.S. 20-166 
(duty to stop in event of accident). 
This definition further includes a 
violation of G.S. 20-138.1 (impaired 
driving) if the defendant was sentenced 
under punishment level one [G.S. 
20- 179(g)] or punishment level two 
[G.S. 20-179(11)] for the offense and 
shall also include a violation of G.S. 
20-28(b) (driving while license 
permanently revoked or suspended). 

(1 1) "Felony" means any offense designated a 
felony by the laws, statutes, or 
ordinances of the jurisdiction in which 
the offense occurred. 

(12) "Dual Certification" means that a justice 
officer holds probationary, general, or 
grandfather certification as both a deputy 
sheriff and a jailer with the same 
employing agency. 

(13) "Jailer" means any person performing 
responsibilities, either on a full-time, 
part-time, permanent or temporary basis, 
which include but are not limited to the 
control, care, and supervision of any 
inmates incarcerated in a county jail or 
other confinement facility under the 
direct supervision and management of the 
sheriff. 

(14) "Deput)' Sheriff" means any person who 
has been duly appointed and sworn by 
the sheriff and who is authorized to 
exercise the powers of arrest in 
accordance with the laws of North 
Carolina. 

(15) "Commission" as it pertains to criminal 
offenses shall mean a finding by the 
North Carolina Sheriffs" Education and 
Training Standards Commission or an 
administrative body, pursuant to the 
provisions of Chapter 150B of the North 



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PROPOSED RULES 



Carolina General Statutes, that a person 
performed the acts necessary to satisfy 
the elements of a specified criminal 
offense. 
(16) "Sworn Law Enforcement Position" 
means a position with a criminal justice 
agency of the United States, any state, or 
a political subdivision of any state which, 
by law, has general power of arrest held 
by a person who has successfully 
completed the North Carolina Basic Law 
Enforcement Training Course. 

Statutory Authority G.S. 17E-7. 

.0105 ADMINISTRATIVE HEARING 
PROCEDURES 

(a) Administrative hearings in contested cases 
conducted by the Commission or an administrative 
law judge (as authorized in G.S. 150B-40) should 
shall be governed by: 

(1) procedures set out in Article 3 A of 
G.S. Chapter 150B; 

(2) insofar as relevant, the Rules of Civil 
Procedure as contained in G.S. lA-1; 

(3) insofar as relevant, the General Rules 
of Practice for the Superior and District 
Courts as authorized by G.S. 7A-34 
and found in the Rules Volume of the 
North Carolina General Statutes. 

Tho Rul e s of Civil Proc e dur e and th e G e n e ral 
Rul e s of Practic e for th e Sup e rior and Di s trict 
Courto (as d e scrib e d in this Rul e ) ar e h e r e by 
adopt e d by r e f e r e nc e for cont e st e d oaoeo for which 
the Commission has authority to adopt rul e s und e r 
G.S. — 150B 3 8 (h). — Such adoptions by r e f e r e nc e 
shall automatically includ e any lat e r am e ndm e nts 
and e dition s of th e adopt e d matt e r as authoriz e d by 
G.S. 150B H(o). 

(b) The rules establishing procedures for 
contested cases adopted by the Office of 
Administrative Hearings as contained in Title 26, 
Chapter 3 of the North Carolina Administrative 
Code are hereby incorporated by reference and 
shall automatically include any later amendments 
and editions of the referenced materials as 
provided by G.S. 150B-21.6. 

(c) Provided, however, that if the case is 
conducted under G.S. 150B-40(b), the presiding 
officer shall have the powers and duties given to 
the Chief Administrative Law Judge or the 
presiding Administrative Law Judge in Title 26, 
Chapter 3 of the North Carolina Administrative 
Code. 

(d) An a pplicant for certification or a certified 



officer shall have 30 days from the date of receipt 
of a notice of proposed action by the Commission 
to request an administrative hearing. 

Statutory Authority G.S. 150B-20; 150B-21.6; 
150B-38(h); 150B-40. 

SECTION .0200 - ENFORCEMENT RULES 

.0201 INVESTIGATION OF VIOLATION 
OF RULES 

(a) If any criminal justice agency, school, 
authorized representative acting on behalf of 
either, or individual is reported to be or suspected 
of being in violation of any of these Rules, the 
Commission may take action to correct the 
violation and to ensure that similar violations do 
not occur. 

(b) Before taking action against an agency, 
school, or individual for a violation, the Division 
shall investigate the alleged violation and, when 
required by the Director, shall present a report of 
its findings to the Probable Cause Committee of 
the Commission . 

(c) The Commission Probable Cause Committee 
may convene prior to each regular meeting of the 
Commission to consider these investigative reports 
and make a determination as to whether or not 
probable cause exists that the Commission's rules 
have been violated; or may delegate authority to 
the Director for further action. 

(d) The Commission Probable Cause Committee 
may: 

(1) direct the Division to conduct a further 
investigation of the alleged violation; 

(2) request the Attorney General to 
authorize an investigation of the 
violation by the State Bureau of 
Investigation; 

(3) direct the Division to conduct an 
administrative hearing in the matter; or 

(4) impos e determine the appropriate 
sanctions against the violator pursuant 
to this S e ction the Commission's Rules. 

Statutory Authority G.S. 17E-4; 17E-7. 

.0204 SUSPENSION: REVOCATION: OR 
DENIAL OF CERTIFICATION 

(a) The Commission shall revoke or deny the 
certification of a justice officer when the 
Commission finds that the applicant for 
certification or the certified officer has committed 
or been convicted of: 

(1) a felony unless pardoned by the 



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PROPOSED RULES 



Governor; or 
(2) a crime for which the authorized 
punishment could have been 
imprisonment for more than two years. 

(b) The Commission shall revoke, deny, or 
suspend the certification of a justice officer when 
the Commission finds that the applicant for 
certification or the certified officer: 

(1) has not enrolled in and satisfactorily 
completed the required basic training 
course in its entirety within a time 
period specified by the Commission; or 

(2) fails to meet or maintain any of the 
minimum employment or certification 
standards required by 12 NCAC lOB 
.0300; or 

(3) fails to satisfactorily complete the 
minimum in-service training 
requirements as presented in 12 NCAC 
lOB .2000 and .2100; or 

(4) has refused to submit to the drug screen 
as required in 12 NCAC lOB .0301(6) 
or .0406(b)(4) or in connection with an 
application for or certification as a 
justice officer or a criminal justice 
officer as defined in 12 NCAC 9 A 
.0103(6); or 

(5) has produced a positive result on any 
drug screen reported to the Commission 
as specified in 12 NCAC lOB .0410 or 
reported to any commission, agency, or 
board established to certify, pursuant to 
said commission, agency, or boards' 
standards, a person as a justice officer 
or a criminal justice officer as defined 
in 12 NCAC 9A .0103(6), unless the 
positive result is explained to the 
Commission's satisfaction. 

(c) The Commission may revoke, deny, or 
suspend the certification of a justice officer when 
the Commission finds that the applicant for 
certification or certified justice officer: 

(1) has knowingly made a material 
misrepresentation of any information 
required for certification or 
accreditation from the Commission or 
the North Carolina Criminal Justice 
Education and Training Standards 
Commission; or 

(2) has knowingly and designedly by any 
means of false pretense, deception, 
defraudation, misrepresentation or 
cheating whatsoever, obtained or 
attempted to obtain credit, training or 
certification from the Commission or 



the North Carolina Criminal Justice 
Education and Training Standards 
Commission; or 

(3) has aided another in obtaining or 
attempting to obtain credit, training, or 
certification from the Commission or 
the North Carolina Criminal Justice 
Education and Training Standards 
Commission by means of deceit, fraud 
or misrepresentation. This Rule shall 
also apply to obtaining or attempting to 
obtain in-service firearms 
requalification as required by 12 NCAC 
lOB .2000 and .2100. i or 

(4) has been removed from office by 
decree of the Superior Court in 
accordance with the provisions of G.S. 
128-16 or has been removed from 
office by sentence of the court m 
accord with the provisions of G.S. 
14-230. 

(d) The Commission may revoke, suspend or 
deny the certification of a justice officer when the 
Commission finds that the applicant for 
certification or the certified officer has committed 
or been convicted of: 

(1) a crime or unlawful act defined in 12 
NCAC lOB .0103(10)(b) as a Class B 
misdemeanor and which occurred after 
the date of initial certification; or 

(2) a crime or unlawful act defined in 12 
NCAC lOB .0103(10)(b) as a Class B 
misdemeanor within the five-year 
period prior to the date of appointment; 
or 

(3) four or more crimes or unlawful acts 
defined in 12 NCAC lOB .0103(10)(b) 
as Class B misdemeanors regardless of 
the date of commission or conviction; 
or 

(4) four or more crimes or unlawful acts 
defined in 12 NCAC lOB .0103(10)(a) 
as a Class A misdemeanor, each of 
which occurred after the date of initial 
certification; or 

(5) four or more crimes or unlawful acts 
defined in 12 NCAC lOB .0103(10)(a) 
as a Class A misdemeanor except the 
applicant may be certified if the last 
conviction or commission occurred 
more than two years prior to the date of 
appointmentT ^ or 

(6) any combination of four or more crimes 
or unlawful acts defined in VI NCAC 
lOB .0103(10)(a) as a Class A 



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PROPOSED RULES 



misdemeanor or defined in 12 NCAC 
lOB .0103(10)(b) as a Class B 
misdemeanor regardless of the date of 
commission or conviction. 

(e) Without limiting the application of Chapter 
17E of the General Statutes of North Carolina, a 
person who has had his certification suspended or 
revoked may not exercise the authority or perform 
the duties of a justice officer during the period of 
suspension or revocation. 

(f) Without limiting the application of Chapter 
17E of the General Statutes of North Carolina, a 
person who has been denied certification may not 
be employed or appointed as a justice officer or 
exercise the authority or perform the duties of a 
justice officer. 

Statutory Authority G.S. 17E-7. 

.0205 PERIOD OF SUSPENSION: 
REVOCATION: OR DENIAL 

When the Commission suspends, revokes, or 
denies the certification of a justice officer, the 
period of sanction shall be: 

(1) permanent where the cause of sanction is: 

(a) commission or conviction of a felony; 
or 

(b) commission or conviction of a crime 
for which authorized punishment 
included imprisonment for more than 
two years; or 

(c) the second revocation, suspension, or 
denial of an officer's certification for 
any of the causes requiring a five-year 
period of revocation, suspension, or 
denial as set out in Subparagraph (2) of 
this Rule. 

(2) not less than five years where the cause 
of sanction is: 

(a) commission or conviction of a crim e 
oth e r than thos e liot e d in Subparagraph 
(1) of this Rul e offenses as specified in 
n NCAC 108 ■0204(d)(4) ; or 

(b) material misrepresentation of any 
information required for certification or 
accreditation from the Commission or 
the North Carolina Criminal Justice 
Education and Training Standards 
Commission; or 

(c) knowingly and designedly by any 
means of false pretense, deception, 
defraudation, misrepresentation or 
cheating whatsoever, obtained or 
attempted to obtain credit, training or 
certification from the Commission or 



the North Carolina Criminal Justice 
Education and Training Standards 
Commission; or 

(d) aiding another in obtaining or 
attempting to obtain credit, training, or 
certification from the Commission or 
the North Carolina Criminal Justice 
Education and Training Standards 
Commission by means of deceit, fraud 
or misrepresentation. This Rule shall 
also apply to obtaining or attempting to 
obtain in-service firearms 
requalification as required by 12 NCAC 
lOB .2000 and .2100; or 

(e) failure to make either of the 
notifications as required by 12 NCAC 
lOB .0301(a)(7); or 

(f) removal from office under the 
provisions of G.S. 128-16 or the 
provisions of G.S. 14-230 ; or 

(g) a positive result on a drug screen, or a 
refusal to submit to drug testing both 
pursuant to 12 NCAC lOB .0301 and 
12 NCAC lOB .0406, or in connection 
with an application for certification as 
a criminal justice officer as defined in 
12 NCAC 9A .0103(6). 

(h) the Commission may either reduce or 

suspend the periods of sanction under 

this Subparagraph or substitute a period 

of probation in lieu of revocation, 

suspension or denial following an 

administrative hearing. This authority 

to reduce or suspend the period of 

sanction may be utilized by the 

Commission when extenuating 

circumstances brought out at the 

administrative hearing warrant such a 

reduction or suspension, in the 

discretion of the Commission. 

(3) for an indefinite period, but continuing so 

long as the stated deficiency, infraction, 

or impairment continues to exists, where 

the cause of sanction is: 

(a) failure to meet or satisfy relevant basic 
training requirements; or 

(b) failure to meet or maintain the 
minimum standards of employment or 
certification; or 

(c) failure to meet or satisfy the in-service 
training requirements as prescribed in 
12 NCAC lOB .2100Tior 

(d) commission or conviction of offenses as 
specified in 12 NCAC lOB .0204(d)(1), 
(2), (3). (5). and (6). 



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PROPOSED RULES 



Statutory Authority G.S. 17E-4: 17E-7. 

SECTION .0300 - MINIMUM STANDARDS 

FOR EMPLOITVIENT AND 
CERTIFICATION AS A JUSTICE OFFICER 

.0301 MINIMUM STANDARDS FOR 
JUSTICE OFFICERS 

(a) Every Justice Officer employed or certified 
as a Deputy Sheriff or Jailer in North Carolina 
shall: 

(1) be a citizen of the United States; 

(2) be at least 21 years of age; 

(3) be a high school graduate, or the 
equivalent (GEO); 

(4) have been fingerprinted by the 
employing agency; 

(5) have had a medical examination by a 
licensed physician; 

(6) have produced a negative result on a 
drug screen administered according to 
the following specifications; 

(A) the drug screen shall be a urine test 
consisting of an initial screening test 
using an immunoassay method and a 
confirmatory test on an initial positive 
result using a gas 
chromatography/mass spectrometry 
(GC/MS) or other reliable initial and 
confirmatory tests as may, from time 
to time, be authorized or mandated by 
the Department of Health and Human 
Services for Federal Workplace Drug 
Testing Programs; and 

(B) a chain of custody shall be maintained 
on the specimen from collection to the 
eventual discarding of the specimen; 
and 

(C) the drugs whose use shall be tested 
for shall include at least cannabis, 
cocaine, phencyclidine (PCP), opiates 
and amphetamines or their 
metabolites; and 

(D) the test threshold values established 
by the Department of Health and 
Human Services for Federal 
Workplace Drug Testing Programs 
are hereby incorporated by reference, 
and shall automatically include any 
later amendments and editions of the 
referenced materials. Copies of this 
information may be obtained from the 
National Institute on Drug Abuse, 
5600 Fisher Lane, Rockville, 
Maryland 20857 at no cost at the time 



of adoption of this Rule; and 

(E) the test conducted shall be not more 
than 60 days old, calculated from the 
time when the laboratory reports the 
results to the date of employment; and 

(F) the laboratory conducting the test 
must be certified for federal 
workplace drug testing programs, and 
must adhere to applicable federal 
rules, regulations and guidelines 
pertaining to the handling, testing, 
storage and preservation of samples, 
except that individual agencies may 
specify other drugs to be tested for in 
addition to those drugs set out in Part 
(C) of this Rule; 

(G) every agency head shall be 
responsible for making adequate 
arrangements for the services of a 
medical review officer (MRO) for the 
purpose of review of drug tests 
reported by the laboratory and such 
officer shall be a licensed physician. 

(7) immediately notify the Standards 
Division and the appointing department 
head in writing of all criminal offenses 
with which the officer is chargedv 
pl e ads no contest to, pl e ads guilty to or 
is found guilty of ^ and shall also give 
notification, in writing, to the Standards 
Division and the appointing department 
head following the adjudication of these 
criminal charges . This shall include all 
criminal offenses except minor traffic 
offenses and shall specifically include 
any offense of Driving Under The 
Influence (DUI) or Driving While 
Impaired (DWI). A minor traffic 
offense is defined, for purposes of this 
Subparagraph, as an offense where the 
maximum punishment allowable is 60 
days or less. Other offenses under 
Chapter 20 (Motor Vehicles) of the 
General Statutes of North Carolina or 
similar laws of other jurisdictions which 
shall be reported to the Division 
expressly include G.S. 20-139 (persons 
under the influence of drugs), G.S. 
20-28(b) (driving while license revoked 
or permanently suspended) and G.S. 
20-166 (duty to stop in event of 
accident). TTie initial notification 
required must specify the nature of the 
offense, the date of offense, and the 
arresting agency. The notifications of 



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PROPOSED RULES 



adjudication required must specify the 
nature of the offense, the court in 
which the case was handled and the 
date of disposition^ and must include a 
certified copy of the final disposition 
from the Clerk of Court in the county 
of adjudication . The notifications of 
adjudication must be received by the 
Standards Division within 30 days of 
the date the case was disposed of in 
court. Officers required to notify the 
Standards Division under this 
Subparagraph shall also make the same 
notification to their employing or 
appointing e x e cutiv e offic e r department 
head within 20 days of the date the case 
was disposed of in court. The 
e x e cutiv e — offic e r department head, 
provided he has knowledge of the 
officer's charge(s), shall also notify the 
Division within 30 days of the date the 
case was disposed of in court. Receipt 
by the Standards Division of a single 
notification, of the initial offenses 
charged and of adjudication of those 
offenses, from either the officer or the 
e x e cutiv e offic e r department head , is 
sufficient notice for compliance with 
this Subparagraph; 

(8) be of good moral character; 

(9) have a thorough background 
investigation conducted by the 
employing agency, to include a 
personal interview prior to 
employment; 

(10) not have committed or been convicted 
of a crime or crimes as specified in 12 
NCAC lOB .0307. 

(b) The requirements of this Rule shall apply to 
all applications for certification and shall also be 
applicable at all times during which the justice 
officer is certified by the Commission. 

Statutory Authority G.S. ]7E-7. 

.0305 BACKGROUND INVESTIGATION 

(a) Prior to the background investigation 
conducted by the employing agency to determine 
the applicant's suitability to perform essential job 
functions, the applicant shall complete the 
Commission's Personal History Statement (F-3) to 
provide a basis for the investigation. The Personal 
History Statement (F-3) submitted to the Division 
shall be completed no more than 120 days prior to 
the applicant's date of appointment. 



(b) If the Personal History Statement (F-3) was 
completed more than 120 days prior to the 
applicant's date of appointment the Personal 
History Statement (F-3) shall be updated by the 
applicant who shall initial and date all changes or 
a new Personal History Statement (F-3) must be 
completed. 

(c) The employing agency shall ensure the 
proper dates, signatures, and notarizations are 
affixed to the Personal History Statement (F-3)j 
and shall also certify that the results of the 
background investigation are consistent with the 
information provided by the applicant on the 
Personal History Statement (F-3), and if not, 
provide the applicant the o pportunity to update the 
F-3 prior to submission to the Division. 

(d) The employing agency, prior to 
employment, shall examine the applicant's 
character traits and habits relevant to his/her 
performance as a justice officer and shall 
determine whether the applicant is of good moral 
character. The investigator shall summarize the 
results of the investigation on a 
commission-approved form which shall be signed 
and dated by the investigator. 

(e) Each applicant shall provide to the 
employing agency a certified copy of a check of 
the applicant's criminal history record from the 
Clerk of Court in each county where the applicant 
has resided within the preceding six months. The 
employing agency shall perform a criminal history 
records check of the agency's own files for each 
applicant. A certified copy of the results of all 
required criminal history records checks shall be 
forwarded with the applicant's Report of 
Appointment form (F-4) to the Division. 
Additionally, a photocopy of the results of all 
required criminal history records shall be retained 
by the agency in the applicant's personnel file. 

(f) The employing agency shall also forward to 
the Division certified copies of any criminal 
charge(s) and disposition(s) known to the agency 
or listed on the applicant's Personal History 
Statement (F-3) or both. This documentation shall 
be included with all other documentation required 
in 12 NCAC lOB .0408. 

Statutory Authority G.S. 17E-7. 

SECTION .0400 - CERTIFICATION OF 
JUSTICE OFFICERS 

.0402 PROBATIONARY CERTIFICATION 

All justice officers, except those transferred or 
reinstated pursuant to Rule .0406 shall serve a 



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PROPOSED RULES 



probationary certification period of one year^ 
provided that the one year probationary period has 
not been extended for cause pursuant to \2 NCAC 
lOB .0303(c); .0503(a); or .0602(a) . For 
certification as a deputy sheriff the probationary 
period begins on the date the officer took the Oath 
of Office. For certification as a jailer, the 
probationary period begins on the date the officer 
was appointed as a jailer. 

Statutory Authority G.S. 17E-4; 17E-7. 

.0403 PROBATIONARY CERTIFICATION 
REQUIREMENT 

(a) For certification as a deputy sheriff or a 
jailer , a Report of Appointment Deputy 
Sherif f/Jailer (F-4) must be submitted to the 
Division. For o e rtifioation as a jail e r, a R e port of 
Appointm e nt Jail e r (F 4 A) muot b e s ubmitt e d to 
the Divioion. — For o e rtifioation as both a d e puty 
sheriff and a jail e r, both forms (F 4 and F 4 A) 
must b e submitt e d to th e Division. Report of 
Appointment forms must be submitted to the 
Division by the sheriffs department no later than 
ten days after the deputy sheriff has taken the Oath 
of Office or the jailer has been appointed. The 
Division shall forward the justice officer's 
certification to the Department. 

(b) No justice officer probationary certification 
will be issued by the Division prior to the 
applicant meeting the conditions set forth in this 
Paragraph . As an additional requirement for 
probationary certification, the applicant shall meet 
the following requirements: 

(1) If the applicant for probationary 
certification is authorized to carry a 
firearm pursuant to the provisions of 12 
NCAC IQB .2104. the employing 
agency shall submit evidence of 
satisfactory completion of the 
employing agency's in-service firearms 
training and requalification program 
pursuant to \2 NCAC IQB .2000 and 
.2100; or 

(2) If the applicant for probationary 
certification is not authorized to carry a 
firearm pursuant to the provisions of 12 
NCAC lOB .2104, the employing 
agency shall notify the Division, in 
writing, that the applicant is not 
authorized to carry a firearm . 

Statutory Authority G.S. 17E-4; 17E-7. 

.0406 LATERAL TRANSFER/ 



REINSTATEMENTS 

(a) An officer with — general — or grandfather 
o e rtifioation who: meeting the requirements of 12 
NCAC lOB .0103(9) may laterally transfer to an 
agency and be certified upon compliance with this 
Rule. 

fi-) i s ourrently oortifi e d; or 

(3^ has boon s e parat e d but has not boon out 

of s ervioo for mor e than one y e ar or 
who has had no br e ak in o e rvio e . may 
lat e rally tran s f e r to an ag e noy and b e 
certifi e d — upon — oompliano e — with — this 
Rttie. 

(b) The employing agency shall verify the 
applicant's certification status with the Division 
prior to submission of the application for 
certification as a justice officer. 

(c) In order for an officer to be certified 
pursuant to this Rule, the employing agency shall 
submit to the Division, along with the Report of 
Appointment (F-4), the following documents: 

(1) fingerprint cards and criminal history 
records checks as specified in 12 
NCAC lOB .0303; 

(2) the applicant's Medical History 
Statement (F-1) and Medical 
Examination Report (F-2) as specified 
in 12 NCAC lOB .0304; 

(3) evidence of a negative result on a drug 
screen administered according to the 
specifications as outlined in 12 NCAC 
lOB .0301(6); 

(4) a copy of the Oath of Office for 
applicants requesting certification as a 
deputy sheriff; 

(5) evidence of satisfactory completion of 
the employing agency's in-service 
firearms training and requalification 
program pursuant to 12 NCAC lOB 
.2000 and .2100; 

(6) documentary evidence of high school, 
college or university graduation to the 
employing agency. Documentary 
evidence consists of diplomas from 
recognized public schools or approved 
private schools, colleges or universities 
which meet approval guidelines of the 
North Carolina Department of Public 
Instruction or a comparable out of state 
agency; or documentary evidence of the 
attainment of satisfactory scores on any 
military high school equivalency 
examination will be acceptable as 
verified by a true copy of the veteran's 
DD214. 



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PROPOSED RULES 



(d) An officer whose certification has been 
suspended pursuant to 12 NCAC lOB .0204(b)(1) 
may have that certification reinstated provided 
that: 

(1) the period of suspension has been one 
year or less; and 

(2) the officer has successfully completed 
the basic training requirements as 
prescribed in 12 NCAC lOB .0500 or 
.0600. 

(e) Requirements of Paragraph (c) of this Rule 
are waived for officers whose certifications are 
reinstated pursuant to Paragraph (d) of this Rule. 

(f) All information maintained pursuant to the 
requirements of this Rule shall be subject to all 
state and federal laws governing confidentiality. 

Statutory Authority G.S. 17E-4; 17E-7. 

.0408 VERIFICATION OF RECORDS TO 
DIVISION 

(a) Prior to the probationary certification of each 
justice officer, for the purpose of verifying 
compliance with these Rules, the employing 
agency shall submit to the Division, along with the 
Report of Appointment (F-4), copies of the 
following documents: 

(1) verification of the applicant's 
compliance with the educational 
requirement pursuant to 12 NCAC lOB 
.0302(a); 

(2) certified copy of the applicant's Oath of 
Office, if applying for certification as a 
deputy sheriff; 

(3) the applicant's Medical History State- 
ment (F-1); 

(4) the applicant's Medical Examination 
Report (F-2 and F-2A); 

(5) the applicant's notarized Personal His- 
tory Statement (F-3); 

(6) a summary of the applicant's back- 
ground investigation; 

(7) documentation of negative results on a 
drug screen pursuant to 12 NCAC lOB 
.0301(6); afid 

(8) certified copies of criminal charges and 
dispositions as required in 12 NCAC 
lOB .0305(e) and (fK ; and 

(9) verification of the applicant's compli- 
ance with the probationary certification 
requirements pursuant to 12 NCAC lOB 
.0403(b). 

(b) Compliance with this Rule is waived^ with 
the exception of the requirements of \2 NCAC 
lOB .0408(a)(9). for officers applying for dual 



certification as defined in 12 NCAC lOB .0103(12) 
provided that: 

(1) the officer holds a valid certification as 
either a deputy sheriff or jailer with the 
employing agency requesting dual 
certification; and 

(2) the officer has not had a break in ser- 
vice since initial certification with the 
employing agency requesting dual 
certification. 

(c) All information maintained pursuant to the 
requirements of this Rule shall be subject to all 
state and federal laws governing confidentiality. 

Statutory Authority G.S. 17E-4; 17E-7. 

.0409 EMPLO'VTNG AGENCY RETENTION 
OF CERTIFICATION RECORDS 

(a) Each employing agency shall place in the 
appropriate justice officer's personnel file the 
official notification of either probationary or 
general certification. Such files shall be available 
for examination at any reasonable time by repre- 
sentatives of the Commission for the purpose of 
verifying compliance with these Rules. Each 
personnel file shall also contain: 

(1) a copy of the applicant's Report of 
Appointment (F-4); 

(2) verification of the applicant's compli- 
ance with the educational requirement 
pursuant to 12 NCAC lOB .0302(a); 

(3) a certified copy of the applicant's Oath 
of Office, if applying for certification 
as a deputy sheriff; 

(4) the results of the applicant's fingerprint 
records check and the criminal history 
records check; 

(5) the applicant's Medical History State- 
ment (F-1); 

(6) the applicant's Medical Examination 
Report (F-2 and F-2 A); 

(7) the applicant's Personal History State- 
ment (F-3); 

(8) a summary of the applicant's back- 
ground investigation; 

(9) a copy of a commission-approved Fire- 
arms Requalification Record Form; 

(10) documentation of negative results on 
drug screen pursuant to 12 NCAC lOB 
.0301(a)(6>. ; and 

(11) verification of the applicant's compli- 
ance with the probationary certification 
requirements pursuant to 12 NCAC lOB 
.0403(b). 

(b) Compliance with this Rule is waived^ with 



8:9 



NORTH CAROLINA REGISTER 



August 2, 1993 



747 



PROPOSED RULES 



the exception of the requirements of J_2 NCAC 
lOB .0409(1 1). for officers applying for dual 
certification as defined in 12 NCAC lOB .0103(12) 
provided that: 

(1) the officer holds a valid certification as 
either a deputy sheriff or jailer with the 
employing agency requesting dual 
certification; and 

(2) the officer has not had a break in 
service since initial certification with 
the employing agency requesting dual 
certification. 

(c) All information maintained pursuant to the 
requirements of this Rule shall be subject to all 
state and federal laws governing confidentiality. 



negligence on the part of the applicant or 
employing agency, in which case the Director may 
accept a commission-accredited basic training 
program which is over one year old. Such 
extension of the one year period shall not exceed 
30 days from the expiration date of a 
commission-accredited basic training program . 

Statutory Authority G.S. 17E-4; 17E-7. 



« 



Statutory Authorin,' G.S. 17E-4. 

SECTION .0500 - MINIMUM STANDARDS 
OF TRAINING FOR DEPUTi' SHERIFFS 

.0503 TIME REQ/ COMPLETION/BASIC 
LAW ENFORCEMENT TRAINING 
COURSE 

(a) Each deputy sheriff holding temporary or 
probationary certification shall satisfactorily 
complete a commission-accredited basic training 
course. The deputy shall complete such course 
within one year from the date of his/her Oath of 
Office. Any deputy sheriff who does not comply 
with this Rule or other training provisions of this 
Chapter shall not be authorized to exercise the 
powers of a deputy sheriff and shall not be 
authorized to exercise the power of arrest. If. 
however, an officer has enrolled in a 
commission-accredited basic law enforcement 
training program that concludes later than the end 
of the officer's probationary' period, the 
Commission may extend, for good cause shown, 
the probationary period for a period not to exceed 
12 months. 

(b) Persons having completed a 
commission-accredited basic law enforcement 
training program and not having been duly 
appointed as in a sworn d e puty — sh e riff law 
enforcement position as defined in 12 NCAC lOB 
.0103(16) within one year of completion of the 
basic law enforcement training course shall 
complete a subsequent commission-accredited basic 
recruit training program in its entirety and 
successfully pass the State Comprehensive 
Examination within the 12 month probationary 
period as prescribed in 12 NCAC lOB .0402^ 
unless the Director determines that a delay in 
applying for certification \>.as due to simple 



748 



8:9 



NORTH CAROLINA REGISTER 



August 2, 1993 



PROPOSED RULES 



^ 



) 



.0505 EVALUATION FOR TRAINING WAIVER 

(a) The Division staff shall evaluate each deputy's training and experience to determine if equivalent training 
has been satisfactorily completed as specified in 12 NCAC lOB .0504(a). Applicants for certification with 
prior law enforcement experience shall have been employed in a sworn law enforcement position in order to 
be considered for training evaluation under this Rule. The following rules shall be used by Division staff in 
evaluating a deputy's training and experience to determine eligibility for a waiver of training. 

(4^ P e rsons who soparat o d from a sworn law e nforc e m e nt position during their probationary p e riod 

aft e r having compl e t e d a commission accr e dit e d Basic Law Enforc e m e nt Training Cours e and who 
hav e b ee n s e parat e d from a sworn law e nforcem e nt pKjsition for more than on e y e ar shall compl e t e 
a subs e qu e nt commission aoor e dit o d Ba s ic Law Enforcement Training Cour se in its e ntirety and 
suooossfully pass th e Stat e Compr e h e nsiv e Examination within th e 12 month probationary' p e riod 
as pr e scrib e d in 12 NCAC lOB .0503(a). 

(1) (3)Persons who separated from a sworn law enforcement position during their probationary period 

after having completed a commission-accredited Basic Law Enforcement Training Course and who 
have been separated from a sworn law enforcement position for one year or less shall serve the 
remainder of the initial probationary period in accordance with G.S. 17E-7(b), but need not 
complete an additional training program. 

(2) f3^Persons who separated from a sworn law enforcement position during their probationary period 

without having completed Basic Law Enforcement Training, or whose certification was suspended 
pursuant to 12 NCAC lOB .0204(b)(1), and who have remained separated or suspended for over 
one year shall complete a commission-accredited Basic Law Enforcement Training Course in its 
entirety and successfully pass the State Comprehensive Examination, and shall be allowed a 12 
month probationary period as prescribed in 12 NCAC lOB .0503(a). 

(3) f4)Out-of-state transferees shall be evaluated to determine the amount and quality of their training and 

experience. Out-of-state transferees: 

(A) shall have a minimum of two years full-time sworn law enforcement experience; 

(B) shall not have a break in service exceeding two years; and 

(C) shall have successfully completed the Basic Law Enforcement Training Course accredited by the 
state from which he/she is transferring. Out-of-state transferees meeting these requirements shall 
successfully complete a commission-accredited Basic Law Enforcement Training Course which 
includes the following topics of North Carolina law and procedure and successfully pass the State 
Comprehensive Examination in its entirety within the 12 month probationary period as prescribed 
in 12 NCAC lOB .0503(a). 

(i) Laws of Arrest, Search and Seizure 16 hours 

(ii) Elements of Criminal Law 24 hours 

(iii) Juvenile Laws and Procedures 8 hours 

(iv) Controlled Substances 6 hours 

(v) ABC Laws and Procedures 4 hours 

(vi) Motor Vehicle Laws 20 hours 

(vii) Civil Process 24 hours 

(viii) Supplemental Custody Procedures 8 hours 

(ix) Firearms Qualification (Handgun and Shotgun Courses) 



) 



TOTAL HOURS 1 10 hours 

(4) ^Persons previously holding Grandfather law enforcement certification in accordance with G.S. 

17C-10(a) or G.S. 17E-7(a) who have been separated from a sworn law enforcement position for 
more than one year and who have not previously completed a minimum Basic Law Enforcement 
Training Course accredited by the North Carolina Criminal Justice Education and Training 
Standards Commission or the North Carolina Sheriffs' Education and Training Standards 
Commission shall be required to complete a commission-accredited Basic Law Enforcement 
Training Course in its entirety and successfully pass the State Comprehensive Examination within 
the 12 month probationary period as prescribed in 12 NCAC lOB .0503(a). 

(5) (€)Persons who have completed a minimum 160-hour Basic Law Enforcement Training Course 

accredited by the North Carolina Criminal Justice Training and Standards Council under guidelines 
administered beginning on July 1, 1973 and continuing through September 30, 1978 and who have 



8:9 NORTH CAROLINA REGISTER August 2, 1993 749 



PROPOSED RULES 



been separated from a sworn law enforcement position for more than one year but no more than 
two years shall be required to complete the following portions of a commission-accredited Basic 
Law Enforcement Training Course and successfully pass the State Comprehensive Examination 
within the 12 month probationary period as prescribed in 12 NCAC lOB .0503(a). 

(A) Juvenile Law and Procedures 8 hours 

(B) Laws of Arrest, Search and Seizure 16 hours 

(C) Elements of Criminal Law 24 hours 

(D) Controlled Substances 6 hours 

(E) ABC Laws and Procedures 4 hours 

(F) Motor Vehicle Laws 20 hours 

(G) Law Enforcement Driver Training 16 hours 
(H) Civil Process 24 hours 
(I) Supplemental Custody Procedures 8 hours 
(J) Firearms Qualification (Handgun and Shotgun Courses) 



TOTAL HOURS 126 hours 

(6) f7)Persons who have completed a minimum 160-hour Basic Law Enforcement Training Course 

accredited by the North Carolina Criminal Justice Training and Standards Council under guidelines 
administered beginning on July 1, 1973 and continuing through September 30, 1978 and who have 
been separated from a sworn law enforcement position for more than two years shall be required 
to complete a commission-accredited Basic Law Enforcement Training Course in its entirety 
regardless of training and experience and successfully pass the State Comprehensive Examination 
within the 12 month probationary period as prescribed in 12 NCAC lOB .0503(a). 

(7) f8)Persons who have completed a minimum 240-hour Basic Law Enforcement Training Course 

accredited by the North Carolina Criminal Justice Eklucation and Training Standards Commission 
and the North Carolina Sheriffs' Education and Training Standards Commission under guidelines 
administered beginning October 1 , 1978 and continuing through September 30, 1984 and who have 
been separated from a sworn law enforcement position for over one year but no more than three 
years shall be required to complete the following portions of a commission-accredited Basic Law 
Enforcement Training Course and successfully pass the State Comprehensive Examination within 
the 12 month probationary period as prescribed in 12 NCAC lOB .0503(a). 

(A) Laws of Arrest, Search and Seizure 16 hours 

(B) Elements of Criminal Law 24 hours 

(C) Juvenile Laws and Procedures 8 hours 

(D) Controlled Substances 6 hours 

(E) ABC Laws and Procedures 4 hours 

(F) Motor Vehicle Laws 20 hours 

(G) Civil Process 24 hours 
(H) Supplemental Custody Procedures 8 hours 
(I) Firearms Qualification (Handgun and Shotgun Courses) 



TOTAL HOURS 1 10 hours 

(8) f9)Persons who have completed a minimum 240-hour Basic Law Enforcement Training Course 

accredited by the North Carolina Criminal Justice Education and Training Standards Commission 
and the North Carolina Sheriffs' Education and Training Standards Commission under guidelines 
administered beginning October 1 , 1978 and continuing through September 30, 1984 and who have 
been separated from a sworn law enforcement position for more than three years shall be required 
to complete a commission-accredited Basic Law Enforcement Training Course in its entirety 
regardless of prior training and experience and successfully pass the State Comprehensive 
Examination within the 12 month probationary period as prescribed in 12 NCAC lOB .0503(a). 

(9) f+0)Persons who have completed a minimum 381 hour Basic Law Enforcement Training Course 

accredited by the North Carolina Sheriffs' Education and Training Standards Commission under 
guidelines administered beginning October 1, 1984 and ending December 31, 1988 and who have 
been separated from a sworn law enforcement position for over one year but no more than three 
years shall be required to complete the following portions of a commission-accredited Basic Law 



750 8:9 NORTH CAROLINA REGISTER August 2, 1993 



« 



PROPOSED RULES 



Enforcement Training Course and successfully pass the State Comprehensive Examination within 
the 12 month probationary period as prescribed in 12 NCAC lOB .0503(a). 

(A) Laws of Arrest, Search and Seizure 

(B) Elements of Criminal Law 

(C) Juvenile Laws and Procedures 

(D) Controlled Substances 

(E) ABC Laws and Procedures 

(F) Motor Vehicle Laws 

(G) Civil Process 

(H) Supplemental Custody Procedures 
(I) Firearms Qualification (Handgun and Shotgun Courses) 

TOTAL HOURS 110 hours 

(10) fH^Persons transferring to a sheriffs department from another law enforcement agency who hold 
certification issued by the North Carolina Criminal Justice Education and Training Standards 
Commission and who have previously completed a commission-accredited Basic Law Enforcement 
Training Course beginning on or after October 1 , 1984 and who have been separated from a sworn 
law enforcement position for no more than one year or who have had no break in service shall be 
required to complete the following enumerated topics of a commission-accredited Basic Law 
Enforcement Training Course and successfully pass that portion of the State Comprehensive 
Examination which deals with those subjects within 12 months of the date of appointment as 
defined in 12 NCAC lOB .0103(1). 

(A) Civil Process 24 hours 

(B) Supplemental Custody Procedures 8 hours 



16 hours 


24 hours 


8 hours 


6 hours 


4 hours 


20 hours 


24 hours 


8 hours 



TOTAL HOURS 32 hours 

(11) {+3)Persons who have completed a minimum 369-hour Basic Law Enforcement Training Course 
accredited by the North Carolina Criminal Justice Education and Training Commission under 
guidelines beginning October 1, 1984 and ending July 1, 1989 and who have been separated from 
a sworn law enforcement position for over one year but no more than three years shall be required 
to complete the following portions of a commission-accredited Basic Law Enforcement Training 
Course and successfully pass the State Comprehensive Examination within the 12 month 
probationary period as prescribed in 12 NCAC lOB .0503(a). 

(A) Laws of Arrest, Search and Seizuree 16 hours 

(B) Elements of Criminal Law 24 hours 

(C) Juvenile Laws and Procedures 8 hours 

(D) Controlled Substances 6 hours 

(E) ABC Laws and Procedures 4 hours 

(F) Motor Vehicle Laws 20 hours 

(G) Civil Process 24 hours 
(H) Supplemental Custody Procedures 8 hours 
(I) Firearms Qualification (Handgun and Shotgun Courses) 



TOTAL HOURS 110 hours 

(12) <+3)Persons who have completed a minimum 422-hour Basic Law Enforcement Training Course 
accredited by the North Carolina Sheriffs Education and Training Standards Commission under 
the guidelines administered beginning January 1, 1989 and ending February 1, 1991 and who have 
been separated from a sworn law enforcement position for over one year but no more than three 
years shall be required to complete the following portions of a commission-accredited Basic Law 
Enforcement Training Course and successfully pass the State Comprehensive Examination within 
the 12 month probationary period as prescribed in 12 NCAC lOB .0503(a). 

(A) Laws of Arrest, Search and Seizure 16 hours 

(B) Elements of Criminal Law 24 hours 

(C) Juvenile Laws and Procedures 8 hours 

(D) Controlled Substances 6 hours 



8:9 NORTH CAROLINA REGISTER August 2, 1993 751 



PROPOSED RULES 



4 hours 


20 hours 


24 hours 


8 hours 



(E) ABC Laws and Procedures 

(F) Motor Vehicle Laws 

(G) Civil Process 

(H) Supplemental Custody Procedures 

(I) Firearms Qualification (Handgun and Shotgun Courses) 

TOTAL HOURS 1 10 hours 

(13) f44)Persons who ha\e previously completed a minimum 410-hour Basic Law Enforcement Training 
Course accredited by the North Carolina Criminal Justice Education and Training Standards 
Commission under guidelines administered beginning July 1, 1989 and ending February 1, 1991 
and who have been separated from a sworn law enforcement position for over one year but no 
more than three years shall be required to complete the following portions of a 
commission-accredited Basic Law Enforcement Training Course and successfully pass the State 
Comprehensive Examination within the 12 month probationary period as prescribed in 12 NCAC 
lOB .0503(a). 

(A) Laws of Arrest, Search and Seizure 16 hours 

(B) Elements of Criminal Law 24 hours 

(C) Juvenile Laws and Procedures 8 hours 

(D) Controlled Substances 6 hours 

(E) ABC Laws and Procedures 4 hours 

(F) Motor Vehicle Laws 20 hours 

(G) Civil Process 24 hours 
(H) Supplemental Custody Procedures 8 hours 
(I) Firearms Qualification (Handgun and Shotgun Courses) 



TOTAL HOURS 1 10 hours 

(14) f4-^Persons who have completed a minimum 444-hour Basic Law Enforcement Training Course 
accredited by the North Carolina Sheriffs' Education and Training Standards Commission under 
the guidelines administered beginning February 1 , 1991 and who have been separated from a sworn 
law enforcement position for over one year but no more than three years shall be required to 
complete the following portions of a commission-accredited Basic Law Enforcement Training 
Course and successfully pass the State Comprehensive Examination within the 12 month 
probationary' period as prescribed in 12 NCAC lOB .0503(a). 

(A) Laws of Arrest, Search and Seizure 16 hours 

(B) Elements of Criminal Law 24 hours 

(C) Juvenile Laws and Procedures 8 hours 

(D) Controlled Substances 6 hours 

(E) ABC Laws and Procedures 4 hours 

(F) Motor Vehicle Laws 20 hours 

(G) Civil Process 24 hours 
(H) Supplemental Custody Procedures 8 hours 
(I) Firearms Qualification (Handgun and Shotgun Courses) 



TOTAL HOURS 110 hours 

(15) H^Persons who have previously completed a minimum 432-hour Basic Law Enforcement Training 
Course accredited by the North Carolina Criminal Justice Education and Training Standards 
Commission under guidelines administered beginning February 1, 1991 and who have been 
separated from a sworn law enforcement position for over one year but no more than three years 
shall be required to complete the following portions of a commission-accredited Basic Law 
Enforcement Training Course and successfully pass the State Comprehensive Examination within 
the 12 month probationan,' period as prescribed in 12 NCAC lOB .0503(a). 

(A) Laws of Arrest, Search and Seizure 16 hours 

(B) Elements of Criminal Law 24 hours 

(C) Juvenile Laws and Procedures 8 hours 

(D) Controlled Substances 6 hours 



752 8:9 NORTH CAROLINA REGISTER August 2, 1993 



% 



PROPOSED RULES 



(E) ABC Laws and Procedures 

(F) Motor Vehicle Laws 

(G) Civil Process 

(H) Supplemental Custody Procedures 

(I) Firearms Qualification (Handgun and Shotgun Courses) 



4 hours 
20 hours 
24 hours 

8 hours 



TOTAL HOURS 1 10 hours 

(16) fW)Persons who have completed training as a federal law enforcement officer and are appointed as 

a deputy sheriff in North Carolina shall be required to complete a commission-accredited Basic Law 
Enforcement Training Course in its entirety regardless of previous federal training and experience 
and successfully pass the State Comprehensive Examination within the 12 month probationary 
period as prescribed in 12 NCAC lOB .0503(a). 

(17) f4-8)Persons out of the law enforcement profession for over three years regardless of prior training 

or experience shall complete a commission-accredited Basic Law Enforcement Training Course in 
its entirety and successfully pass the State Comprehensive Examination within the 12 month 
probationary period as prescribed in 12 NCAC lOB .0503(a). 

(18) {+^Wildlife Enforcement Officers who completed the Basic Law Enforcement Training Course prior 

to September 30, 1985 and are sworn as justice officers shall be subject to the evaluation rules as 
stated in 12 NCAC lOB .0505(a)(1) and (a)(4) through (11). 

(19) 430)Wildlife Enforcement Officers who separate from employment with the Wildlife Enforcement 

Division and have less than one year break in service, who transfer to a Sheriffs Department in 
a sworn capacity, and who completed their Basic Training after September 30, 1985 shall complete 
the following blocs of instruction and pass the state exam in its entirety within one year of their 
date of appointment as defined in 12 NCAC lOB .0103(1). 

(A) Crime Prevention Techniques 4 hours 

(B) Mechanics of Arrest: Custody Procedure 2 hours 

(C) Mechanics of Arrest: Processing Arrestee 4 hours 

(D) Special Populations 12 hours 

(E) Techniques of Traffic Law Enforcement 6 hours 

(F) Dealing with Victims and the Public 8 hours 

(G) Civil Process 24 hours 
(H) Supplemental Custody Procedures 8 hours 
(I) Firearms Qualification (Handgun and Shotgun Courses) 



20) 



TOTAL HOURS 68 hours 

(3-HWildlife Enforcement Officers who completed Basic Law Enforcement Training on or after 

September 30, 1985 and have been out of a sworn position over one year but no more than three 

years, and are sworn as a justice officer must complete the following blocs of instructions and pass 

the state exam in its entirety during their probationary period as prescribed in 12 NCAC lOB .0503 
(a). 

(A) Laws of Arrest Search and Seizure 16 hours 

(B) Elements of Criminal Law 24 hours 

(C) Juvenile Laws and Procedures 8 hours 

(D) Controlled Substances 6 hours 

(E) ABC Laws and Procedures 4 hours 

(F) Motor Vehicle Laws 20 hours 

(G) Crime Prevention Techniques 4 hours 
(H) Mechanics of Arrest: Custody Procedures 2 hours 
(I) Mechanics of Arrest: Processing Arrestees 4 hours 
(J) Special Populations 12 hours 
(K) Techniques of Traffic Law Enforcement 6 hours 
(L) Dealing with Victims and the Public 8 hours 
(M) Civil Process 24 hours 
(N) Supplemental Custody Procedures 8 hours 
(O) Firearms Qualification (Handgun and Shotgun Courses) 



8:9 



NORTH CAROLINA REGISTER 



August 2, 1993 



753 



PROPOSED RULES 



TOTAL HOURS 146 hours 

(21) (33)Alcohol Law Enforcement Officers who completed the Basic Law Enforcement Training Course 

prior to April 1, 1983 or after November i^. 1993, and are sworn as a justice officer shall be 
subject to the evaluation rules as prescribed in 12 NCAC lOB ■Q505(a)(l) and (q)( 4 ) through (9) 
.0505 (a)(3) through (8) and (a)(14) and (15). 

(22) fS^Alcohol Law Enforcement Officers who separate from employment with the Alcohol Law 

Enforcement Division and have less than a one year break in service, who transfer to a Sheriffs 
Department in a sworn capacity, and who completed their Basic Training aft e r administered 
beginning April 1, 1983 and ending November l^ 1993 shall complete the following blocs of 
instruction and pass the state comprehensive exam in its entirety within one year of their date of 
appointment as defined in 12 NCAC lOB .0103(1). 

(A) Law Enforcement Communication and Information Systems 4 hours 

(B) Patrol Techniques 16 hours 

(C) Crime Prevention Techniques 4 hours 

(D) Mechanics of Arrest: Vehicle Stops 6 hours 

(E) Mechanics of Arrest: Custody Procedures 2 hours 

(F) Mechanics of Arrest: Processing Arrestee 4 hours 

(G) Special Populations 12 hours 
(H) Interviews: Field and In-Custody 8 hours 
(I) Motor Vehicle Law 20 hours 
(J) Techniques of Traffic Law Enforcement 6 hours 
(K) Dealing with Victims and the Public 8 hours 
(L) Civil Process 24 hours 
(M) Supplemental Custody Procedures 8 hours 
(N) Firearms Qualification (Handgun and Shotgun Course) 

TOTAL HOURS 122 hours 

(23) <54)Alcohol Law Enforcement Officers who completed their Basic Training after administered 

beginning April 1 , 1983 and ending November i^^ 1993 and are sworn as a justice officer and who 
have been out of a sworn position for over one year but no more than three years shall complete 
the following blocs of instruction and pass the state examination in its entirety during their one year 
probationary period as prescribed in 12 NCAC lOB .0503(a). 

(A) Laws of Arrest, Search and Seizure 

(B) Elements of Criminal Law 

(C) Juvenile Laws and Procedures 

(D) Controlled Substances 

(E) ABC Laws and Procedures 

(F) Law Enforcement Communication and Information Systems 

(G) Patrol Techniques 
(H) Crime Prevention Techniques 
(I) Mechanics of Arrest: Vehicle Stops 
(J) Mechanics of Arrest: Custody Procedures 
(K) Mechanics of Arrest: Processing Arrestee 
(L) Special Populations 
(M) Interviews: Field and In-Custody 
(N) Motor Vehicle Law 
(O) Techniques of Traffic Law Enforcement 
(P) Dealing with Victims and the Public 
(Q) Civil Process 

(R) Supplemental Custody Procedures 
(S) Firearms Qualification (Handgun and Shotgun Course) 

TOTAL HOURS 180 hours 

(b) In those instances not specifically incorporated within this Section or where an evaluation of the 

applicant's prior training and experience determines that required attendance in the entire Basic Law 

Enforcement Training Course would be impractical, the director is authorized to exercise his/her discretion 



# 



16 hours 


24 hours 


8 hours 


6 hours 


4 hours 


4 hours 


16 hours 


4 hours 


6 hours 


2 hours 


4 hours 


12 hours 


8 hours 


20 hours 


6 hours 


8 hours 


24 hours 


8 hours 



754 



8:9 



NORTH CAROLINA REGISTER 



August 2, 1993 



PROPOSED RULES 



in determining the amount of training those persons shall complete during their probationary period. 



Statutory Authority G.S. 17E-4; 17E-7. 

SECTION .0600 - MINIMUM STANDARDS 
OF TRAINING FOR JAILERS 

.0602 TIME REQ/COMPLETION//JAILER 
CERT TRAINING COURSE 

(a) Each individual employed by a sheriffs 
department as a jailer holding probationary 
certification shall satisfactorily complete a 
commission-accredited jailer training course. The 
individual shall complete such course within one 
year from the date of his original appointment as 
a jailer as determined by the date of the 
probationary certification. Any individual 
employed as a jailer who does not comply with 
this Rule or other training provisions of this 
Chapter shall not be authorized to exercise the 
powers of a jailer. If, however, an individual has 
enrolled in a commission-accredited jailer course 
that concludes later than the end of the individual's 
probationary period, the Commission may extend, 
for good cause shown, the probationary period for 
a period not to exceed six months. 

(b) Persons having completed a 
commission-accredited jailer training course and 
not having been duly appointed as a jailer within 
one year of completion of the course shall 
complete a subsequent commission-accredited jailer 
training course in its entirety and successfully pass 
the State Comprehensive Examination within the 
12 month probationary period as prescribed in 12 
NCAC lOB .0602(a)^ unless the Director 
determines that a delay in a pplying for certification 
was due to simple negligence on the part of the 
applicant or employing agency, in which case the 
Director may accep t the commission-accredited 
jailer training program which is over one year old. 
Such extension of the one year period shall not 
exceed 30 days from the expiration date of a 
commission-accredited jailer training program . 

Statutory Authority G.S. 17E-4. 

.0606 COMP WRITTEN EXAM - JAILER 
CERTIFICATION COURSE 

(a) At the conclusion of a school's offering of 
the "Jailer Certification Course", an authorized 
representative of the Commission shall administer 
a comprehensive written examination to each 
trainee who has satisfactorily completed all of the 
course work. A trainee cannot be administered the 
comprehensive written examination until such time 



as all course work is successfully completed. 

(b) The examination shall be an objective test 
consisting of multiple-choice, true-false, or similar 
questions covering the topic areas as described in 
12 NCAC lOB .0601(b). 

(c) The Commission's representative shall 
submit to the school director within ten days of the 
administration of the examination a report of the 
results of the test for each trainee examined. 

(d) A trainee shall successfully complete the 
comprehensive written examination if he/she 
achieves a minimum of 70 percent correct 
answers . 

(e) A trainee who has fully participated in a 
scheduled delivery of an accredited training course 
and has demonstrated satisfactory competence in 
each motor-skill or performance area of the course 
curriculum but has failed to achieve the minimum 
score of 70 percent on the Commission's 
comprehensive written examination may request 
the Director to authorize a re-examination of the 
trainee. 

(1) A trainee's Request for Re-examination 
shall be made in writing on the 
Commission's form within 90 30 days 
after the original examination and shall 
be received by the Division before the 
expiration of the trainee's probationary 
certification as a jailer. 

(2) The trainee's request for re-examination 
shall include the favorable 
recommendation of the school director 
who administered the trainee's "Jailer 
Certification Course". 

(3) A trainee shall have only one 
opportunity for re-examination and shall 
satisfactorily complete the subsequent 
examination in its entirety within 90 
days after the original examination . 

(4) A trainee will be assigned in writing by 
the Division a place, time, and date for 
re-examination. 

(5) Should the trainee on re-examination 
not achieve the prescribed minimum 
score of 70 on the examination, the 
trainee may not be recommended for 
certification and must enroll and 
complete a subsequent course in its 
entirety before further examination may 
be permitted. 



8:9 



NORTH CAROLINA REGISTER 



August 2, 1993 



755 



PROPOSED RULES 



Statutory Authoriry G.S. 17E-4: 17E-7. 

SECTION .0700 - MINIMUM STANDARDS 

FOR JUSTICE OFFICER SCHOOLS AND 

TRAINING PROGRAMS OR COURSES 

OF INSTRUCTION 

.0704 RESPONSIBILITIES: SCHOOL 
DIRECTORS 

(a) In planning, developing, coordinating, and 
delivering each commission accredited Jailer 
Certification Course, the school director shall: 

(1) Formalize and schedule the course 
curriculum in accordance with the 
curriculum standards established by the 
Commission. 

(A) The Jailer Certification Course shall 
be presented with a minimum of 40 
hours of instruction each week during 
consecutive calendar weeks until 
course requirements are completed. 

(B) In the event of exceptional or 
emergency circumstances, the 
Director may, upon written finding of 
justification, grant a waiver of the 
minimum hours requirement. 

(2) Select and schedule qualified instructors 
who are properly certified by the 
Commission. The selecting and 
scheduling of instructors is subject to 
special requirements as follows: 

(A) No single individual may be 
scheduled to instruct more than 35 
percent of the total hours of the 
curriculum during any one delivery 
except as set forth in (2)(B). 

(B) Where the school director shows 
exceptional or emergency 
circumstances and the school director 
documents that an instructor is 
qualified to instruct more than 35 
percent of the total hours of the 
curriculum, the Director of the 
Division may grant written approval 
for the expansion of the individual 
instructional limitation. 

(3) Provide each instructor with a 
commission-approved course outline 
and all necessary additional information 
concerning the instructor's duties and 
responsibilities. 

(4) Review each instructor's lesson plans 
and other instructional materials for 
conformance to established commission 
standards and to minimize repetition 



and duplication of subject matter. 

(5) Shall permanently maintain records of 
all Jailer Certification Courses 
sponsored or delivered by the school, 
reflecting: 

(A) Course title; 

(B) Delivery hours of course; 

(C) Course delivery dates; 

(D) Names and addresses of instructors 
utilized within designated 
subject-matter areas; 

(E) A roster of enrolled trainees, showing 
class attendance and designating 
whether each trainee's course 
participation was successful or 
unsuccessful including individual test 
scores and methods or instruments ; 

(F) Copies of all rules, regulations and 
guidelines developed by the school 
director; 

(G) Documentation of any changes in the 
initial course outline, including 
substitution of instructors; and 

(H) Documentation of make-up work 
achieved by each individual trainee, 
including test scores and methods or 
instruments . 

(6) Arrange for the timely availability of 
appropriate audiovisual aids and 
materials, publications, facilities and 
equipment for training in all topic 
areas. 

(7) Develop, adopt, reproduce, and 
distribute any supplemental rules, 
regulations, and requirements 
determined by the school to be 
necessary or appropriate for: 

(A) Effective course delivery; 

(B) Establishing responsibilities and 
obligations of agencies or departments 
employing course trainees; and 

(C) Regulating trainee participation and 
demeanor and ensuring trainee 
attendance and maintaining 
performance records. 

A copy of such rules, regulations and 
requirements shall be submitted to the 
Director as an attachment to the 
Pre-Deliver}' Report of Training Course 
Presentation, Form F-7A. A copy of such 
rules shall also be given to each trainee 
and to the sheriff of each trainee's 
employing agency at the time the trainee 
enrolls in the course. 

(8) If appropriate, recommend housing and 



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t) 



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dining facilities for trainees. 

(9) Not less than 30 days before 
commencing delivery of the course, 
submit to the Commission a 
Pre-Delivery Report of Training Course 
Presentation (Form F-7A) along with 
the following attachments: 

(A) A comprehensive course schedule 
showing arrangement of topical 
presentations and proposed 
instructional assignments; 

(B) A copy of any rules, regulations, and 
requirements for the school and, when 
appropriate, completed applications 
for Prof e osional Lectur e r Cortifioation 
certification of instructors . 

(C) The Director shall review the 
submitted Pre-Delivery Report 
together with all attachments to ensure 
that the school is in compliance with 
all commission mandated rules and 
regulations; if school's rules are 
found to be in violation, the Director 
shall notify the school director of 
deficiency, and approval will be 
withheld until all matters are in 
compliance with the Commissions" 
rules. 

(10) Administer the course delivery in 
accordance with commission-approved 
procedures, guidelines, and standards 
and ensure that the training offered is 
as effective as possible. 

(11) Monitor or designate a certified 
instructor to monitor the presentations 
of all probationary instructors during 
course delivery and prepare formal 
written evaluations on their 
performance and suitability for 
subsequent instructional assignments. 
These evaluations shall be prepared on 
commission-approved forms and 
forwarded to the Division at the 
conclusion of each delivery. Based on 
this evaluation the school director shall 
have the added responsibility for 
recommending approval or denial of 
requests for General Jail Instructor 
Certification, Limited Lecturer 
Certification or Professional Lecturer 
Certification. 

(12) Monitor or designate a certified 
instructor to monitor the presentations 
of all other instructors during course 
delivery and prepare formal written 



evaluations on their performance and 
suitability for subsequent instructional 
assignments. Instructor evaluations 
shall be prepared on 
commission-approved forms in 
accordance with commission standards. 
These evaluations shall be kept on file 
by the school for a period of three 
years and shall be made available for 
inspection by a representative of the 
Commission upon request. 

(13) Ensure that any designated certified 
instructor who is evaluating the 
instructional presentation of another 
shall, at a minimum, hold certification 
in the same instructional topic area as 
that being taught. 

(14) f4r^Administer or designate a qualified 

person to administer appropriate tests as 
determined necessary at various 
intervals during course delivery. 

(15) {44)Maintain direct supervision, 

direction, and control over the 
performance of all persons to whom 
any portion of the planning, 
development, presentation, or 
administration of a course has been 
delegated. 

(16) f4-§)During a delivery of the Jailer 

Certification Course, make available to 
authorized representatives of the 
Commission three hours of scheduled 
class time and classroom facilities for 
the administration of a written 
examination to those trainees who have 
satisfactorily completed all course 
work. 

(17) fi4)Not more than ten days after 

receiving from the Commission's 
representative the Report of 
Examination Scores, the school director 
shall submit to the Commission a 
Post-Delivery Report of Training 
Course Presentation (Form 7-B). 

Statutory Authority G.S. 17E-4. 

SECTION .0900 - MINIMUM STANDARDS 
FOR JUSTICE OFFICER INSTRUCTORS 

.0901 CERT/ESfSTRUCTORS/BASIC LAW 
ENFORCEMENT TRAINING COURSE 

The rules covering the certification of 
instructors, codified as Title 12, Subchapter 9B, 
Section .0300 of the North Carolina Administrative 



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Code, and previously adopted by the North 
Carolina Criminal Justice Education and Training 
Standards Commission, are hereby incorporated by 
reference, and shall automatically include any later 
amendments and editions of the referenced 
materials, to apply to actions of the North Carolina 
Sheriffs' Education and Training Standards 
Commission with the exception of instructors for 
the Jailer Certification Course and inBtruotors for 
th e Physiool Fitness topioal ar e a of th e Basic Law 
Enforcem e nt Training Cour s e . Copies of the 
publication may be obtained from the Office of 
Administrative Hearings, Capehart-Crocker House, 
424 North Blount Street, Raleigh, North Carolina 
27601. TTie cost per copy is two dollars and fifty 
cents ($2.50) for the first 10 pages and fifteen 
cents ($0.15) for each page thereafter at the time 
of adoption of this Rule. 

Statutory Authority G.S. 17E-4. 

.0902 PHYS FITNESS INSTRS//BASIC LAW 
ENFORCEMENT TRAINING COURSE 

Only — instructors — holding — Sp e cific — Instructor 
C e rtification in th e Physical Fitn e ss topical ar e a 
who w e r e c e rtifi e d by th e North Carolina Criminal 
Justic e — Education — afid — Training — Standards 
Commission under the following r e quir e m e nts 
shall — be — authorized — te — instruct — the — mandat e d 
Physical Fitn e ss topioal ar e a: 

H^ Hold curr e nt G e n e ral Instructor 

C e rtification issued by the North Carolina 
Criminal Ju s tic e Education and Training 
Standard s Commission; and 

(3^ Successfully — compl e t e d — (be — p e rtin e nt 

Physical — Fitn e ss — Sp e cific — In s tructor 
Training — Cours e — as — approv e d — by — tfe« 

North Carolina Criminal Justic e 

Education afld Training Standards 

Commission; and 

(^9 Obtain th e r e comm e ndation of a school 

dir e ctor c e rtified by the North Carolina 
Criminal Justic e Education and Training 
Standards Commission. 

Statutory Authority G.S. 17E-4. 

.0904 GENERAL JAILER EVSTRUCTOR 
CERTIFICATION 

An applicant for General Jailer Instructor 

Certification shall meet the following 

requirements: 

(1) Present documentary evidence 

demonstrating that the applicant: 

(a) has attended and successfully completed 



the North Carolina Sheriffs' Education 
and Training Standards 
Commission-approved Jail Training 
Course; or holds a valid certification as 
a jailer or correctional officer o* 
d e monstrat e s — prior exp e ri e nc e — as — afi 
instructor in the jail or corrootional 
fi e ld ; and 

^ has at least two y e ars of e xp e rionoo as 

a — jailer, corr e ctional — offic e r — ef 

instructor — ifl — tfee — fi e ld — of jails — &r 
corr e ction; 
(h) (e)holds General Instructor certification 
issued by the North Carolina Criminal 
Justice Education and Standards 
Commission. 
(2) Persons holding eely General Jailer 
Instructor Certification may teach any 
topical areas of instruction in the 
Commission-mandated course with the 
exception of those outlined in Rul e s 
■09Q6(c) and 12 NCAC lOB .0908(a)(1) 
through (7). 

Statutory Authority G.S. 17E-4. 

.0906 PROFESSIONAL LECTURER 
CERTIFICATION 

(a) The Commission may issue Professional 
Lecturer Certification to a p e rson in a formally 
r e cogniz e d — prof e ssion, — i-ren — m e dicin e , — tewr 
psychology, — wbe — by — virtu e — ef — th e ir — formal 
acad e mic — d e gr e e(6) — hav e — dev e lop e d — sp e cial 
e xp e rtis e , licensed attomey-at-law or a person with 
a law degree to teach the following topics in the 
Jailer Certification Course: 

(1) Civil Liability in the Jail; 

(2) Legal Rights and Responsibilities; 

(3) Legal Aspects of Criminal 
Investigation. 

(b) To be eligible for such certification an 
applicant shall present documentary evidence 
demonstrating that the applicant has: 

(1) graduated from an accredited law 
school , m e dical school or oth e r school 
accr e dit e d — for conf e rring dogrocs — ie 

formally recogniz e d — prof e ssions 

acc e ptabl e to the Commi ss ion ; 

(2) obtain obtained the endorsement of a 
commission recognized school director 
who shall: 

(A) recommend the applicant for 
certification as a professional lecturer; 
and 

(B) describe the applicant's expected 



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PROPOSED RULES 



participation, topical areas, duties and 
responsibilities. 

{©) Only — lic e ns e d — attorn e ys at law — holding 

Prof e ssional Lectur e r C e rtification may t e ach th e 
following topics: 

{^ Civil Liability in th e Jail; 

(3) Legal Righto and R es pon s ibiliti e s; 

0^ Legal Asp e cts e-f Criminal 

Investigation. 

Statutory Authority G.S. 17E-4. 

.0909 TERMS AND CONDITIONS OF A 
LIMITED LECTURER 
CERTIFICATION 

(a) An applicant meeting the requirements for 
certification as a Limited Lecturer shall, for the 
first 12 months of certification, be in a 
probationary status. The Limited Lecturer 
Certification, Probationary Status, shall 
automatically expire 12 months from the date of 
issuance. 

(b) The probationary instructor will be eligible 
for full Limited Lecturer status at the end of the 
probationary period if the instructor, through 
application, submits to the Commission: 

(1) a favorable recommendation from a 
school director accompanied by 
certification on a commission-approved 
Instructor Evaluation Form that the 
instructor taught at least four hours in 
one or more of the topics for which 
Limited Lecturer Certification, 
Probationary Status was granted. Such 
instruction must have occurred in a 
commission-accredited jailer training 
course during the probationary period. 
The results of the student evaluation 
must be considered by the school 
director when determining the 
recommendation; or 

(2) a favorable written evaluation by a 
commission or staff member, based on 
an on-site classroom evaluation of the 
probationary instructor in a 
commission-accredited jailer training 
course. Such evaluation must be 
certified on a commission-approved 
Instructor Evaluation Form completed 
for one or more of the topics where the 
probationary instructor taught a 
minimum of four hoursT i and 

(3) documentation that all other 
certifications required in 12 NCAC lOB 
.0908 remain valid. 



(c) Full Limited Lecturer Certification shall be 
continuous se — leag — as — aH — oth e r — o e rtifioationo 
r e quired in 12 NCAC lOB .090 8 r e main valid, and 
so long as the lecturer submits to the Division 
every two years: 

(1) a favorable written recommendation 
from a school director accompanied by 
certification on a commission-approved 
instructor evaluation form that the 
lecturer successfully taught at least four 
hours in one or more of the topics for 
which Limited Lecturer Certification 
was granted during the previous 
two-year period; or 

(2) a favorable written evaluation by a 
commission member or staff member 
based on an on-site classroom 
observation of the lecturer while 
teaching a minimum of four hours in 
one or more of the topics for which 
Limited Lecturer Certification was 
grantedT ; and 

(3) a renewal application to include 
documentation that all other 
certifications required in 12 NCAC lOB 
.0908 remain valid. 

(d) The date Full Limited Lecturer Certification 
is originally issued is the anniversary date from 
which each two-year period is figured. 

(e) If a lecturer does not teach a minimum of 
four hours during each two-year period following 
the awarding of Full Limited Lecturer 
Certification, his/her certification automatically 
expires, and the lecturer must then apply for 
probationary limited lecturer certification and must 
meet all applicable requirements. 

Statutory Authority G.S. 17E-4. 

SECTION .1000 - PROFESSIONAL 

CERTIFICATE PROGRAM FOR SHERIFFS 

AND DEPUTY SHERIFFS 

.1003 BASIC LAW ENFORCEMENT 
CERTIFICATE 

In addition to the qualifications set forth in Rule 
. 1002, an applicant for the Basic Law Enforcement 
Certificate shall: 

(1) have no less than one year of service; 
and 

(2) have successfully completed a 
commission-accredited basic law 
enforcement training course and any 
remedial training as required by the 
Commission; or 



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PROPOSED RULES 



(3) have completed a minimum of 160 hours 
of training in the field of law 
enforcement. 

Statutory Authority G.S. 17E-4. 

.1005 ADVANCED LAW ENFORCEMEISJT CERTIFICATE 

(a) In addition to the qualifications set forth in Rule .1002, applicants for the Advanced Law Enforcement 
Certificate shall possess or be eligible to possess the Intermediate Law Enforcement Certificate and shall have 
acquired the following combination of educational points or degrees, law enforcement training points and years 
of law enforcement experience: 

Educational Degrees AA/AS AB/BS GRAB. /PRO. 

Years of Law 

Enforcement 

Experience 12 9 9 6 4 

Minimum Law 

Enforcement 

Training Points 35 50 33 27 23 

Minimum Total 

Education and 

Training Points 69 99 33 27 23 

fb) Educational points claimed shall have been earned at a technical institute, technical college, community 
college, junior college, college or university accredited as such by the Department of Education of the state 
in which the institution is located, the appropriate recognized accrediting body, or the state university of the 
state in which the institution is located. 

Statutory Authority G.S. 17E-4. 

SECTION .1200 - PROFESSIONAL CERTIFICATE PROGRAM FOR JAILERS 

.1205 ADVANCED JAILER PROFESSIONAL CERTIFICATE 

(a) In addition to the qualifications set forth in Rule .1202, applicants for the Advanced Jailer Professional 
Certificate shall possess or be eligible to possess the Intermediate Jailer Professional Certificate and shall have 
acquired the following combination of educational points or degrees, jail or corrections training points and 
years of jailer experience: 

Educational Degrees AA/AS AB/BS GRAD./PRO. 

Years of Jailer 



Experience 


12 


9 


9 


6 


4 


Minimum Jailer 
Training Points 


12 


16 


27 


26 


26 



Minimum Total 

Education and 

Training Points 23 33 27 26 26 

(h) Educational points claimed shall have been earned at a technical institute, technical college, community 



760 8:9 NORTH CAROLINA REGISTER August 2, 1993 



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college, junior college, college or university accredited as such by the Department of Education of the state 
in which the instittition is located, the appropriate recognized accrediting body, or the state university of the 
state in which the institution is located. 



Statutory Authority G.S. 17E-4. 

SECTION .2100 - JUSTICE OFFICERS' 

FIREARMS IN-SERVICE TRAINING 

REQUALIFICATION PROGRAM 

.2104 IN-SERVICE FIREARMS 
REQUALIFICATION 
SPECIFICATIONS 

(a) All justice officers who are authorized by the 
sheriff to carry a handgun shall qualify a minimum 
of once each year with each handgun that the 
officer is authorizod to carry whil e on duty on a 
commission approv e d day and night oour o e their 
individual and department-approved service 
handgun . TTie course of fire shall not be less 
stringent than the "Basic Law Enforcement 
Training Course" requirements for firearms 
qualification. 

(b) All justice officers who are issued, or 
otherwise authorized by the sheriff to carry a 
shotgun, rifle, or automatic weapon shall be 
required to qualify with each weapon respectively 
a minimum of once each year es — a 
commission approved cours e of fire . 

(c) Qualifications conducted pursuant to Para- 
graphs (a) and (b) of this Rule shall be completed 
with duty equipment and duty ammunition or duty- 
type ammunition meeting the specifications of the 
duty ammunition as to type projectile, weight and 
velocity. 

(d) All justice officers who are authorized by the 
sheriff to carry off duty handguns shall qualify 
with their off duty handgun a minimum of once 
each year pursuant to 12 NCAC lOB .2103 and 
.2104(a) and (b) with each handgun the officer 
carries off duty using ammunition approved by the 
sheriff. 

(e) All justice officers who are issued or have 
access to any weapons not stated in this Rule must 
qualify with these weapons once each year using 
ammunition approved by the sheriff. 

(f) In cases where reduced-sized targets are used 
to simulate actual distances, a modified course of 
fire may be used. 

(g) To satisfy the minimum training require- 
ments for all in-service firearms requalifications, 
a justice officer shall attain a minimum qualifica- 
tion score of 70 percent accuracy with each weap- 
on once in three attempts with no more than three 
attempts on each course of fire per day. 



fh) The "In-Service Firearms Qualification 
Manual" as published by the North Carolina 
Justice Academy is hereby incorporated by refer- 
ence, and shall automatically include any later 
amendments or editions of the referenced materials 
to apply as a minimum guide for conducting the 
annual in-service firearms qualification. Copies of 
the publication may be obtained from the North 
Carolina Justice Academy, Post Office Drawer 99, 
Salemburg, North Carolina 28385. There is no 
cost per manual at the time of adoption of this 
Rule. 

Statutory Authority G.S. 17E-4; 17E-7. 

ISotice is hereby given in accordance with G.S. 
1508-21. 2 that the North Carolina Alarm Systems 
Licensing Board intends to adopt rule cited as 12 
NCAC 11 .0209. 

1 he proposed effective date of this action is 
November 1, 1993. 

1 he public hearing will be conducted at 2:00 
p.m. on August 17, 1993 at the State Bureau of 
Investigations, Conference Room, 3320 Old Gar- 
ner Rd. . Raleigh. NC 27626. 

Ixeason for Proposed Action: Requires a firm, 
association, or corporation which is engaged in or 
will be engaged in the alarm systems business 
profession to obtain a corporate business license. 

(comment Procedures: Interested persons may 
present their views either orally or in writing at 
the hearing. In addition, the record of the hearing 
will be open for receipt of written comments 
through September 1, 1993. Written comments 
may be delivered to: James Kirk, Administrator, 
3320 Old Gamer Rd., P.O. Box 29500, Raleigh, 
NC 27626. 

CHAPTER 11 - NORTH CAROLINA 
ALARM SYSTEMS LICENSING BOARD 



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SECTION .0200 - PROVISIONS FOR 
LICENSEES 

.0209 CORPORATE BUSINESS LICENSE 

(a) Any firm, association, or corporation re- 
quired to be licensed pursuant to G.S. 74D-2(a) 
shall submit an application for a corporate business 
license on a form provided by the Board. This 
application for license shall call for such informa- 
tion as the firm, association, or corporation name; 
the address of its principal office within the State; 
any past conviction for criminal offenses of any 
corporate director, or officer; information concern- 
ing the past revocation, suspension or denial of a 
business or professional license to any director, or 
officer; a list of all directors and officers of the 
firm, association, or corporation; a list of all 
persons, firms, associations, corporations or other 
entities owning 10 percent or more of the outstand- 
ing shares of any class of stock; and the name and 
address of the qualifying agent. 

£b} In addition to the items required in Para- 
graph (a) of this Rule, a foreign corporation shall 
further qualify by filing with its application for a 
license, a copy of its certificate of authority to 
transact business in this state issued by the North 
Carolina Secretary of State in accordance with 
G.S. 55-131 and a consent to service of process 
and pleadings which shall be authenticated by its 
corporate seal and accompanied by a duly certified 
copy of the resolution of the board of directors 
authorizing the proper officer or officers to exe- 
cute said consent. 

(c) After filing a completed written application 
with the Board, the Board shall conduct a back- 
ground investigation to ascertain if the qualifying 
agent is in a management position. The Board 
shall also determine if the directors, or officers 
have the requisite good moral character as defined 
in G.S. 74D-6(3). It shall be prima facie evidence 
of good moral character if a director or officer has 
not been convicted by any local. State, federal, or 
military court of any crime involving the use, 
carrying, or possession of a firearm; conviction of 
any crime involving the use, possession, sale, 
manufacture, distribution, or transportation of a 
controlled substance, drug, narcotic, or alcoholic 
beverage; conviction of a crime involving assault 
or an act of violence; conviction of a crime involv- 
ing breaking or entering, burglary, larceny, or any 
offense involving moral turpitude; or does not 
have a history of addiction to alcohol or a narcotic 
drug; provided that, for purposes of this Section, 
"conviction" means and includes the entry of a 

ea of guilty or no contest or a verdict rendered 



in open court by a judge or jury. 

(d) Upon satisfactory completion of the back- 
ground investigation, a corporate business license 
may be issued. This license shall be conspicuously 
displayed at the principle place of business within 
the State of North Carolina. 

(e) The corporate business license shall be 
issued only to the corporation and shall not be 
construed to extend to the licensing of its direc- 
tors, officers, or employees. 

(f) The issuance of the corporate business 
license is issued to the firm, association, or corpo- 
ration in addition to the license issued to the 
qualifying agent. Therefore, the qualifying agent 
for the firm, association, or corporation which has 
been issued the corporate business license shall be 
responsible for assuring compliance with G.S. 
74D. 

Statutory Authority G.S. 74D-2(a); 74D-5. 

TITLE 15A - DEPARTMENT OF 

ENVIRONMENT, HEALTH, AND 

NATURAL RESOURCES 

Jylotice is hereby given in accordance with G.S. 
150B-21.2 that EHNR - Commission for Health 
Services intends to adopt rule cited as 15A NCAC 
19A .0406. 

Ihe proposed effective date of this action is 
January 4, 1994. 

Ihe public hearing will be conducted at 1:30 
p.m. on September 13, 1993 at the Norton Board 
Room, 6th Floor, Cooper Memorial Health Build- 
ing, 225 N. McDowell Street, Raleigh, N.C. 

Ixeason for Proposed Action: Pursuant to the 
6/7/93 passage of HB 452, "An Act to Clarify the 
Requirements of the General Statutes Pertaining to 
Immunizations", rules are required to specify the 
immunization information that can be provided to 
schools, day-cares. Head Start and colleges and 
universities that are due to resume in September 
1993. 



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(comment Procedures: All persons interested ii 
these matters are invited to attend the public 
hearing. Written comments may be presented at 
the public hearing or submitted to John P. 
Barkley, Department of Justice, P. O. Box 629, 



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PROPOSED RULES 



Raleigh, NC 27602-0629. Persons who wish to 
speak at the hearing should contact John P. 
Barkley at (919)733-4618. Persons who call in 
advance of the hearing will be given priority on 
the speaker 's list. Oral presentation lengths may 
be limited depending on the number of people that 
wish to speak at the public hearing. Only persons 
who have made comments at a public hearing or 
who have submitted written comments will be 
allowed to speak at the Commission meeting. 
Comments made at the Commission meeting must 
either clarify previous comments or proposed 
changes from staff pursuant to comments made 
during the public hearing process. 

IT IS VERY IMPORTANT THAT ALL 
INTERESTED AND POTENTIALLY AFFECTED 
PERSONS, GROUPS. BUSINESSES. 
ASSOCIATIONS, INSTITUTIONS OR AGENCIES 
MAKE THEIR VIEWS AND OPINIONS KNOWN 
TO THE COMMISSION FOR HEALTH SERVICES 
THROUGH THE PUBLIC HEARING AND 
COMMENT PROCESS. WHETHER THEY 
SUPPORT OR OPPOSE ANY OR ALL 
PROVISIONS OF THE PROPOSED RULES. THE 
COMMISSION MAY MAKE CHANGES TO THE 
R ULES A T THE COMMISSION MEETING IF THE 
CHANGES COMPLY WITH G.S. 150B-21.2(f). 

Note: NOTICE OF INTENT TO ADOPT A 
TEMPORARY RULE 

Notice is hereby given thai the EHNR- 
Commission for Health Services intends to adopt 
this Rule in a temporary action, Eff. August 9, 
1993, For a Period of 180 Days or Until the 
Permanent Rule Becomes Effective, Whichever is 
Sooner. 

The Commission for Health Services will decide 
on the proposed adoption of the temporary rule at 
its regularly scheduled meeting on August 4, 
1993. This meeting starts at 10:00 a.m. and will 
be held in the Norton Board Room, Cooper 
Memorial Health Building-6th Floor, 225 N. 
McDowell St., Raleigh, N.C. 

CHAPTER 19 - HEALTH: EPIDEMIOLOGY 

SUBCHAPTER 19A - COMMUNICABLE 
DISEASE CONTTROL 

SECTION .0400 - IMMUNIZATION 

.0406 ACCESS TO IMMUNIZATION 
INFORMATION 



(a) Immunization information may be released in 
whole or in part with the written consent of the 
person identified or their guardian. 

(b) Immunization information specified in 
Paragraph (c) of this Rule may also be obtained 
from a physician or local health department upon 
request by: 

(1) schools K-12, whether public, private 
or religious; 

licensed and registered daycare facilities 
as defined in G.S. 110-86(3) and G.S. 
110-102; 
Head Start; an d 

whether 



£2) 



13} 
14} 



colleges and universities, 
public, private or religious. 



(c) Upon request, persons specified in Paragraph 



obtain the following 
individual for whom a 



rb) of this Rule may 

information about each 

certificate of immunization is required by G.S. 
130A-155and 155.1: 

(1) name and address; 

(2) name of the parent, guardian, or person 
in loco parentis; 

£3} date of birth; 

(4) gender; 

(5) vaccine type. date and dose 
administered; 

(6) the name and address of the physician 
or health department that administered 
each dose; and 

(7) certification of medical and religious 
exemptions pursuant to G.S. 130A-156 
and 157 and 15 A NCAC 19A .0204. 

Statutory Authority G.S. 130A-153. 

TITLE 21 - OCCUPATIONAL 
LICENSING BOARDS 

jy/otice is hereby given in accordance with G.S. 
150B-21.2that the North Carolina State Board of 
Dental Examiners intends to amend rules cited as 
21 NCAC 16B .0304; I6C .0203. .0304; 16D 
.0101 - .0102; 16H .0104. .0203, .0205 and 16Q 
.0204, .0301, .0303. .0403. 

1 he proposed effective date of this action is 
November 1, 1993. 

1 he public hearing will be conducted at 2:00 
p.m. on August 20. 1993 at the Highway Building, 
One South Wilmington Street. 1st Floor Auditori- 
um, Raleigh, NC 27611. 



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PROPOSED RULES 



MXeason for Proposed Action: 
21 NCAC 16B .0304 - To require applicants for 
dental licensure, who are licensed in other states, 
to furnish verification of licensure from the secre- 
tary of the dental board of each state in which they 
are licensed and to change the language in the 
rule to conform to a change on the application. 
21 NCAC 16C .0203 - To delete requirement that 
applicants for dental hygiene licensure furnish 
transcripts of high school credits or a copy of an 
equivalency certificate. 

21 NCAC 16C .0304 - To require applicants for 
dental hygiene licensure, who are licensed in other 
states, to furnish verification of licensure from the 
secretary of the dental board of each state in 
which they are licensed. 

21 NCAC 16D .0101 - To require an applicant for 
provisional licensure to present to the Board 
documentary evidence satisfactory to the Board 
that he is in good standing with the dental licens- 
ing agencies of all Jurisdictions in which he is 
currently licensed to practice dentistry. 
21 NCAC 16D .0102 - To allow the Board to 
require that a provisional licensee be supervised by 
a dentist licensed in North Carolina. 
21 NCAC 16H .0104 - To delete requirement that 
Dental Assistants must be currently certified by the 
Dental Assisting National Board. 
21 NCAC 16H . 0203 - To allow a Dental Assistant 
II to polish supragingival surfaces of natural and 
restored teeth by means of a rotary rubber cup or 
brush. 

21 NCAC 16H .0205 - To delete prohibition that 
neither a Dental Assistant I nor a Dental Assistant 
II shall perform a prophylaxis or remove stains, 
accretions or deposits from the teeth. 
21 NCAC 16Q .0204 - To allow that inspections 
only involving a facility and equipment check may 
be accomplished by one or more evaluators. 
21 NCAC 16Q .0301 - To allow a dentist applying 
for a permit to administer sedation to utilize a 
certified registered nurse anesthetist under his 
supervision to administer intravenous sedation to 
dental patients. 

21 NCAC 16Q .0303 - To allow evaluations of 
dentists applying for sedation permits to be con- 
ducted by dentists who have been issued sedation 
permits by the Board and have administered 
sedation for at least three years. 
21 NCAC 16Q .0403 - To add that on-site inspec- 
tions shall also be conducted in accordance with 
Rule I6Q .0303. 



(comment Procedures: Any person desiring to 
present oral data, views, or arguments on a 
proposed rule must, at least 10 days prior to the 
proposed hearing, file a notice with the Board. 
Notice of such request to appear or a failure to 
give timely notice may be waived by the Board in 
its discretion. Comments should be limited to 5 
minutes. Any person permitted to make an oral 
presentation is directed to submit a written state- 
ment of such presentation to the Board prior to or 
at the time of such hearing. The Board's address 
is P. O. Box 32270, Raleigh, NC 27622-2270. Any 
person may file written submission of comments or 
argument at any time up to and including Septem- 
ber I, 1993. 

CHAPTER 16 - BOARD OF DEISfTAL 
EXAMINERS 

SUBCHAPTER 16B - LICENSURE 
EXAMINATION: DENTISTS 

SECTION .0300 - APPLICATION 

.0304 OTHER REQUIREMENTS 

Applicants who are licensed in other states are 
required to furnish verification of licensure from 
the secretary of the dental board of each state in 
which they are licensed. Letters of recommenda- 
tion which ar e substitut e d for the oharaoter ref e r 
e no e s in th e application must be received in the 
Board's office before the application is considered 
complete. A photograph, taken within six months 
prior to the date of the application, must be affixed 
to the application. A second photograph, not over 
two inches in height, must be paper-clipped to the 
application to be used as part of the identification 
badge. 

Statutory Authority G.S. 90-28; 90-30; 90-48. 

SUBCHAPTER 16C - LICENSURE 

EXAMINATION: DENTAL 

HYGIENIST 

SECTION .0200 - QUALIFICATIONS 

.0203 TRANSCRIPTS REQUIRED 

Applicants are required to furnish transcripts of 
high school creditB or a copy of an equivalency 
certifioat e duly i ss u e d by a gov e rnm e ntal ag e ncy 
or unit authoriz e d to issue th e same togeth e r with 
dental hygiene school or college credits. These 
transcripts are to accompany the application, or 



% 



% 



# 



764 



8:9 



NORTH CAROLINA REGISTER 



August 2, 1993 



PROPOSED RULES 



may be mailed to the Board's office from the 
record department of each school attended. 

Statutory Authority G. S. 90-223; 90-224. 

SECTION .0300 - APPLICATION 

.0304 OTHER REQUIREMENTS 

Applicants who hav e b ee n in praotio e are IN 
censed in other states are required to furnish 
verification of licensure from the secretary of the 
dental board of the each state in which they last 
praotio e d are licensed , together with two letters of 
recommendation, preferably written by dentists. 
A photograph, taken within six months prior to the 
date of application, must be affixed to the applica- 
tion. A second photograph, not over two inches in 
height, must be paper-clipped to the application, to 
be used as a part of the identification badge. 

Statutory Authority G.S. 90-223; 90-224. 

SUBCHAPTER 16D - PROVISIONAL 
LICENSURE: DENTISTS 

SECTION .0100 - GENERAL PROVISIONS 

.0101 ELIGIBILITY REQUIREMENTS 

(a) No p e rson Persons shall be eligible for 
provisional licensure under the provisions of G.S. 
90-29.3 who has not if they have been licensed to 
practice dentistry in another jurisdiction for a 
period of not l e s s than at least two years immedi- 
ately preceding the date of application for provi- 
sional licensure. 

(b) An applicant for provisional licensure must 
present to the Board documentary evidence satis- 
factory to the Board that he is in good standing 
with the dental licensing ag e ncy agencies of the aH 
jurisdictions wherein he is then currently licensed 
to practice dentistry. 

(c) No person shall be eligible for provisional 
licensure who has been censured, disciplined, or 
punished by any dental licensing agency or dental 
organization for violation of professional ethics or 
the laws of any jurisdiction. 

Statutory Authority G.S. 90-28; 90-29.3; 90-48. 

.0102 RESTRICTIONS ON PRACTICE 

(a) Any provisional license issued to a member 
of the faculty of an educational institution shall 
limit the practice of such provisional licensee to 
the confines of the facilities provided by the 
educational institution of which he is a faculty 



member. 

(b) In those instances in which the Board deems 
such restriction appropriate, the dental practice of 
a provisional licensee may be restricted to a 
geographic location or to a specialized field of 
dentistry, or both. Supervision by a dentist li; 
censed in North Carolina may also be required. 

Statutory Authority G.S. 90-29.3. 

SUBCHAPTER 16H - DENTAL 
ASSISTANTS 

SECTION .0100 - CLASSIFICATION 
AND TRAINING 

.0104 APPROVED EDUCATION 

AND TRAINING PROGRAMS 

Education and training programs approved by the 
North Carolina State Board of Dental Examiners 
and experience requirements qualifying Dental 
Assistants as Dental Assistant II include: 

(1) satisfactory completion of one academic 
year or longer in a Dental Assistant or 
Dental Hygiene program approved by the 
Commission on Dental Accreditation of 
the American Dental Association; 

(2) full-time employment as a chairside 
assistant (Dental Assistant I) by a dentist 
licensed in North Carolina for three 
consecutive years of the preceding five, 
completion of a Board-approved course 
in intraoral radiography, and completion 
of didactic training in a dental assisting 
course approved by the Board that must 
include asepsis and dental emergencies; 

(3) a curr e ntly c e rtifi e d d e ntal assistant (o e r 
tifi e d by the D e ntal A s sigting National 
Board) successful completion of the 
certification examination administered by 
the Dental Assisting National Board ; and 

(4) completion of equivalent training and 
experience as approved by the Board. 

Statutory Authority G.S. 90-29(c)(9). 

SECTION .0200 - PERMITTED FUNCTIONS 
OF DENTAL ASSISTANT 

.0203 PERMITTED FUNCTIONS OF 
DENTAL ASSISTANT II 

A Dental Assistant II may do and perform any 
and all acts or functions which may be done or 
performed by a Dental Assistant I. Additionally, 
a Dental Assistant II, after adequate training and 



8:9 



NORTH CAROLINA REGISTER 



August 2, 1993 



765 



PROPOSED RULES 



qualification, may be delegated appropriate func- 
tions to be performed under the direct control and 
supervision of a dentist who shall be personally 
and professionally responsible and liable for any 
and all consequences or results arising from the 
performance of such acts and functions. A Dental 
Assistant II may: 

(1) Take impressions for study models and 
opposing casts which will not be used for 
construction of dental appliances; 

(2) Apply sealants to teeth that do not re- 
quire mechanical alteration prior to the 
application of such sealants, provided a 
dentist has examined the patient and 
prescribed the procedure^ and 

(3) Polish supragingival surfaces of natural 
and restored teeth by means of a rotary 
rubber cup or brush and appropriate 
polish agents. 



may be accomplished by one or more evaluators. 

(b) Any dentist-member of the Board may 
observe or consult in any evaluation. 

(c) The inspection team shall determine compli- 
ance with the requirements of these rules, as 
applicable, by assigning a grade of "pass" or 
"fail". 

(d) Each evaluator shall report his recommenda- 
tion to the Board, setting forth the details support- 
ing his conclusion. The Board is not bound by 
these recommendations. The Board will make the 
final determination as to whether or not the appli- 
cant has passed the evaluation/inspection and will 
so notify the applicant, in writing. 

(e) At least a 15-day notice will be given prior 
to an evaluation or inspection. The entire inspec- 
tion fee of two hundred seventy-five dollars 
($275.00) will be due ten days from the date of 
receipt of such notice. 



f 



Statutory Authority G.S. 90-29(c)(9); 90-48. 

.0205 SPECIFIC PROfflBITED 
FUNCTIONS OF DENTAL 
ASSISTANTS I AND II 

Those specific functions which shall not be 
delegated to either a Dental Assistant I or a Dental 
Assistant II include those procedures prohibited in 
21 NCAC 16G, Rule .0003 for Dental Hygienists. 
In addition, neither a Dental Accistant I nor a 
Dental Assistant II ohall p e rform a prophylaxis or 
romovo stains, accr e tions or deposits from th e 
teeth 

Statutory Authority G.S. 90-29(c)(9); 90-48. 

SUBCHAPTER 16Q - GENERAL 
ANESTHESIA AND SEDATION 

SECTION .0200 - GENERAL 
ANESTHESIA 

.0204 PROCEDURE FOR EVALUATION 
OR INSPECTION 

(a) When an evaluation or on-site inspection is 
required, the Board will designate two or more 
persons, each of whom is qualified to administer 
general anesthesia and has so administered such 
for a minimum of three years preceding the inspec- 
tion, exclusive of his training in general anesthe- 
sia. At least one of the evaluators must have had 
experience in the evaluation of dentists using 
general anesthesia. When an on-site inspection 
involves only a facility and equipment check and 
not an evaluation of the dentist, such inspection 



Statutory Authority G.S. 90-28; 90-30.1. 

SECTION .0300 - SEDATION 

.0301 SEDATION CREDEIVTriALS 
AND PERMIT 

(a) A dentist may administer or employ a 
certified registered nurse anesthetist to administer 
sedation to dental patients on an outpatient basis 
provided he obtains a permit from the Board by 
submitting the appropriate information on an 
application form provided by the Board and pays 
a fee of fifty dollars ($50.00). 

(b) A dentist applying for a permit to administer 
sedation must meet at least one of the following 
criteria: 

(1) Satisfactory completion of a minimum 
of 60 hours of didactic training and 
instruction in intravenous conscious 
sedation and satisfactory management 
of a minimum of ten patients, under 
supervision, using intravenous sedation 
in a training program approved by the 
Board; or 

(2) Satisfactory completion of an 
undergraduate or postgraduation 
program which included intravenous 
conscious sedation training equivalent 
to that defined in Subparagraph (1) of 
this Rule; or 

(3) Satisfactory completion of an internship 
or residency which included intravenous 
conscious sedation training equivalent 
to that defined in Subparagraph (1) of 
this Rule; or 



# 



# 



766 



8:9 



NORTH CAROLINA REGISTER 



August 2, 1993 



PROPOSED RULES 



(4) Authorization for the use of general 
anesthetics by holding a permit for the 
same issued by the Boardv^ or 

(5) Utilization of a certified registered 
nurse anesthetist under his supervision 
to administer intravenous sedation to 
dental patients. 

(c) To be eligible for a sedation permit, a dentist 
must be operating within a properly equipped 
facility, which includes the capability of delivering 
positive pressure oxygen, staffed with supervised 
auxiliary personnel capable of handling proce- 
dures, problems and emergencies incident thereto. 

(d) The dentist seeking a permit must be trained 
and capable of administering basic life support. 

(e) The Board may, based upon formal applica- 
tion, grant a permit authorizing the use of sedation 
to a dentist who has been utilizing sedation in a 
competent and effective manner for the past five 
years, but who has not had the benefit of formal 
training as outlined in Paragraph (b) of this Rule, 
provided that said dentist meets the requirements 
of Paragraphs (c) and (d) of this Rule. 

Statutory Authority G.S. 90-28; 90-30.1. 

.0303 TEMPORARY APPROVAL PRIOR 
TO SITE EVALUATION 

(a) If a dentist meets the requirements of Rule 
.0301 of this Section, he shall be granted tempo- 
rary approval to continue to administer sedation 
until a permit can be issued. Temporary approval 
may be granted based solely on credentials until all 
processing and investigation has been completed. 
Temporary approval may not exceed 12 months. 
An on-site evaluation of the facilities, equipment, 
procedures and personnel will be required. The 
evaluation will be conducted in accordance with 
Rules .0202-. 0205 of this Subchapter, and f e es 
r e quir e d by thos e rul e s will apply except that 
evaluations of dentists applying for sedation per- 
mits may be conducted by dentists who have been 
issued sedation permits by the Board and who have 
administered sedation for at least three years. 
Fees required by Rules .0202 z 0205 of this 
Subchapter will apply . 

(b) An evaluation may be made any time it is 
deemed necessary by the Board. 

Statutory Authority G.S. 90-28; 90-30.1. 

SECTION .0400 - RENEWAL OF 
PERMITS 

.0403 INSPECTION AUTHORIZED 



Incident to the renewal of an anesthesia or 
sedation permit, the Board may, in its discretion, 
require an on-site inspection of the dentist's facili- 
ty, equipment, personnel and procedures. Such 
inspection shall be conducted in accordance with 
Rules .0204^ aad .0205, and .0303 of this Sub- 
chapter. 

Statutory Authority G.S. 90-28; 90-30.1. 

I\otice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Board of 
Physical Therapy Examiners intends to amend 
rules cited as 21 NCAC 48D .0009; 21 NCAC 48E 
.0101. 

1 he proposed effective date of this action is 
November 1, 1993. 

1 he public hearing will be conducted at 2:00 
p.m. on August 26, 1993 at the NC Board of 
Physical Therapy Examiners, 18 West Colony 
Place, Suite 120, Durham, North Carolina 27705. 

Jxeason for Proposed Action: To change filing 
deadline to comply with testing service require- 
ments for ordering examinations. 

(comment Procedures: Interested persons may 
present their views either orally or in writing at 
the hearing. In addition, the record of hearing 
will be open for receipt of written comments from 
August 2, 1993 to 5:00 p.m. on September 3, 
1993. Such written comtnents must be delivered or 
mailed to Constance W. Peake, NC Board of 
Physical Tlierapy Examiners, 18 West Colony 
Place, Suite 120, Durham, NC 27705. 

CHAPTER 48 - BOARD OF PHYSICAL 
THERAPY EXAMINERS 

SUBCHAPTER 48D - EXAMINATIONS 

.0009 RETAKING EXAMINATION 

(a) Arrangements for Retake. To retake the 
examination, the applicant must notify the execu- 
tive secretary at least 45 60 days in advance of the 
examination date and pay the retake fee and the 
examination cost at that time. 

(b) Retake Examination. The Board will admin- 



8:9 



NORTH CAROLINA REGISTER 



August 2, 1993 



767 



PROPOSED RULES 



ister a particular form of the examination to an 
applicant only one time. 

Statutory^ Authority G.S. 90-270.26; 90-270.29; 
90-270.30: 90-270.32. 

SUBCHAPTER 48E - APPLICATION FOR 
LICENSURE 

SECTION .0100 - REQUIREMENTS 

.0101 FILING APPLICATION 

(a) It is the responsibility of the applicant to 
ascertain that his credentials are filed properly with 
the executive secretary. 

(b) To be certain an applicant will be considered 
for the desired examination date^. the h e d e oir & s, h e 
must submit hio application must be submitted to 
the executive secretary at least 44 60 days prior to 
the examination. 

Statutory Authority G.S. 90-270.26; 90-270.29; 
90-270'31(h). 



f 



I 



i 



768 8:9 NORTH CAROLINA REGISTER August 2, 1993 



LIST OF RULES CODIFIED 



J. he List of Rules Codified 


is a listing of rules that were filed with OAH in the month indicated. 


K.ey: 






Citation 


= 


Title, Chapter, Subchapter and Rule(s) 


AD 


= 


Adopt 


AM 


= 


Amend 


RP 


= 


Repeal 


With Chgs 


= 


Final text differs from proposed text 


Con 


= 


Typographical errors or changes that requires no rulemaking 


Eff. Date 


= 


Date rule becomes effective 


Temp. Expires 


^ 


Rule was filed as a temporary rule and expires on this date or 180 days 



NORTH CAROLE^JA ADMINISTRATIVE CODE 



JUNE 93 



[TLE 


DEPARTMENT 


TITLE 


DEPARTMENT 


1 


Administration 


21 


Occupational Licensing Boards 


2 


Agriculture 




2 - Architecture 


10 


Human Resources 




8 - CPA Examiners 


12 


Justice 




14 - Cosmetic Art Examiners 


13 


Labor 




26 - Landscape Architects 


15A 


Environment, Health, 




32 - Medical Examiners 




and Natural Resources 




34 - Mortuary Science 


16 


Public Education 




36 - Nursing 


17 


Revenue 




48 - Physical Therapy Examiners 


19A 


Transportation 




58 - Real Estate Commission 



Citation 


AD 


AM 


RP 


With 
Chgs 


Corr 


Eff. 
Date 


Temp. 
Expires 


I NCAC 26C .0001 - .0004 


/ 










07/01/93 




.0005 


/ 






/ 




07/01/93 




.0006 - .0008 


/ 










07/01/93 




30D .0302 




/ 








07/01/93 




39 .0201 


/ 






/ 




07/01/93 




2 NCAC 9L .1801 -.1804 






/ 






07/01/93 




.1805 


/ 










07/01/93 




10 NCAC 14B .0501 - .0502 




/ 








07/01/93 




.0503 




/ 




/ 




07/01/93 




.0504 






/ 






07/01/93 







8:9 



NORTH CAROLINA REGISTER 



August 2, 1993 



769 



LIST OF RULES CODIFIED 





Citation 


AD 


AM 


RP 


With 
Chgs 


Corr 


Eff. 
Date 


Temp. 
Expires 


10 NCAC I4B .0505 




/ 








07/01/93 




.0506 




/ 




/ 




07/01/93 




.0507 - .0508 




/ 








07/01/93 




.0509 


/ 










07/01/93 




14K .0103 




/ 




/ 




07/01/93 




.0315 




/ 




/ 




07/01/93 




18D .0208 




/ 








07/01/93 




18H .0109 -.0110 




/ 




/ 




07/01/93 




.0111 - .0112 




/ 








07/01/93 




.0114 




/ 




/ 




07/01/93 




.0115 






/ 






07/01/93 




.0116 




/ 




/ 




07/01/93 




18L .1515 




/ 








07/01/93 




18M .1404 






/ 






07/01/93 




41Q .0201 




/ 








07/02/93 




45H .0202 




/ 








07/01/93 




.0205 




/ 








07/01/93 




12 NCAC 2A .0203 




/ 








07/01/93 




11 .0301 




/ 




/ 




07/01/93 




13 NCAC 7C .0101 




/ 








07/14/93 




15A NCAC 2D .0903 




/ 




/ 




07/01/93 




.0912 




/ 








07/01/93 




.1002 




/ 




/ 




07/01/93 




.1004 




/ 








07/01/93 




31 ,0001 




/ 




/ 




07/01/93 




3J .0103 




/ 




/ 




07/01/93 




.0401 


/ 






/ 




07/01/93 




3K .0101 




/ 








07/01/93 




.0304 




/ 




/ 




07/01/93 




.0506 




/ 




/ 




07/01/93 




3L .0201 




/ 








07/01/93 




3M .0103 


/ 






/ 




07/01/93 




.0508 




/ 








07/01/93 







770 



8:9 



NORTH CAROLINA REGISTER 



August 2, 1993 



LIST OF RULES CODIFIED 



^ 



) 



) 





Citation 


AD 


AM 


RP 


With 
Chgs 


Corr 


Eff. 
Date 


Temp. 
Expires 


15A NCAC 3M .0510 


/ 






/ 




07/01/93 




3Q .0107 




/ 








07/01/93 




.0202 




/ 








07/01/93 




3R .0002 




/ 




/ 




07/01/93 




.0007 




/ 




/ 




07/01/93 




.0008 




/ 








07/01/93 




8A .0101 




/ 








07/01/93 




.0102 






/ 






07/01/93 




.0202 




/ 




/ 




07/01/93 




.0301 




/ 








07/01/93 




.0302 




/ 




/ 




07/01/93 




.0303 


/ 










07/01/93 




8B .0101 




/ 








07/01/93 




.0102 




/ 




/ 




07/01/93 




.0108 - .0109 




/ 




/ 




07/01/93 




.0201 - .0202 




/ 




/ 




07/01/93 




.0205 


/ 






/ 




07/01/93 




.0206 






/ 






07/01/93 




.0207 - .0212 


/ 






/ 




07/01/93 




.0213 


/ 










07/01/93 




.0214 
recodified from 

.0205 




/ 




/ 




07/01/93 




.0301 - .0303 




/ 








07/01/93 




.0402 




/ 








07/01/93 




.0404 




* 








07/01/93 




.0406 


/ 










07/01/93 




.0502 




/ 




/ 




07/01/93 




.0506 


/ 






/ 




07/01/93 




8C .0002 




/ 




/ 




07/01/93 




.0004 




/ 




/ 




07/01/93 




.0005 


/ 






/ 




07/01/93 




.0006 - .0008 


/ 










07/01/93 




8D .0002 




/ 








07/01/93 







8:9 



NORTH CAROLINA REGISTER 



August 2, 1993 



771 



LIST OF RULES CODIFIED 





Citation 


AD 


AM 


RP 


With 
Chgs 


Corr 


Eff. 
Date 


Temp. 
Expires 


15 A NCAC 8D .0004 - .0005 




/ 








07/01/93 




.0006 




/ 




/ 




07/01/93 




lOA .0401 - .0402 




/ 








07/01/93 




lOB .0113 




/ 








07/01/93 




.0115 




/ 








07/01/93 




.0203 




/ 




/ 




07/01/93 




.0209 




/ 




/ 




07/01/93 




.0219 


/ 










07/01/93 




IOC .0107 




/ 




/ 




07/01/93 




.0108 




/ 








07/01/93 




.0205 




/ 




/ 




07/01/93 




.0206 




/ 








07/01/93 




.0208 




/ 








07/01/93 




.0302 




/ 








07/01/93 




.0305 




/ 








07/01/93 




.0401 - .0402 




/ 








07/01/93 




.0404 




/ 




/ 




07/01/93 




.0503 




/ 








07/01/93 




lOD .0002 




/ 




/ 




07/01/93 




.0003 - .0004 




/ 








07/01/93 




lOF .0305 




/ 








07/01/93 




.0314 




/ 








07/01/93 




.0320 - .0321 




/ 








07/01/93 




.0330 




/ 




/ 




07/01/93 




.0340 




/ 








07/01/93 




13C .0201 - .0204 




/ 








07/01/93 




18A .0911 




/ 




/ 




07/01/93 




.1601 




/ 




/ 




07/01/93 




.1603 




/ 




/ 




07/01/93 




.1606 




/ 




/ 




07/01/93 




.1609 




/ 








07/01/93 




.1720 




/ 




/ 




07/01/93 




.1721 


/ 










07/01/93 







772 



8:9 



NORTH CAROLINA REGISTER 



August 2, 1993 



LIST OF RULES CODIFIED 



^ 



) 



) 





Citation 


AD 


AM 


RP 


With 
Chgs 


Corr 


Eff. 
Date 


Temp. 
Expires 


15A NCAC 18A .1722 - .1723 


/ 






/ 




07/01/93 




.1724 


/ 










07/01/93 




.1725 


/ 






/ 




07/01/93 




.1726 


/ 










07/01/93 




.1727 


/ 






/ 




07/01/93 




.1728 


/ 










07/01/93 




.2601 




/ 




/ 




07/01/93 




.2606 




/ 








07/01/93 




.2607 




/ 




/ 




07/01/93 




.2618 




/ 




/ 




07/01/93 




.2644 




/ 








07/01/93 




.2812 




/ 




/ 




07/01/93 




.3008 




/ 




/ 




07/01/93 




18C .0308 




/ 




/ 




07/01/93 




.1402 




/ 








07/01/93 




.1608 




/ 








07/01/93 




.2101 - .2102 




/ 








07/01/93 




19A .0204 




/ 








07/01/93 




19G .0103 




/ 








07/01/93 




25 .0213 




/ 








07/01/93 




16 NCAC lA .0006 


/ 






/ 




07/01/93 




6C .0202 




/ 








07/01/93 




.0310 




/ 




/ 




07/01/93 




17 NCAC 10 .0101 




/ 








07/01/93 




.0102- .0103 






/ 






07/01/93 




.0201 




/ 








07/01/93 




.0203 






/ 






07/01/93 




.0401 - .0402 






/ 






07/01/93 




.0403 - .0406 




/ 








07/01/93 




.0407 - .0408 






/ 






07/01/93 




.0501 - .0502 






/ 






07/01/93 




.0504 - .0505 




/ 








07/01/93 




.0507 




/ 








07/01/93 







8:9 



NORTH CAROLINA REGISTER 



August 2, 1993 



773 



LIST OF RULES CODIFIED 





Citation 


AD 


AM 


RP 


With 
Chgs 


Corr 


Eff. 
Date 


Temp. 
Expires 


17 NCAC 10 .0509 -.0510 




/ 








07/01/93 




.0511 






/ 






07/01/93 




11 .0101 




/ 








07/01/93 




.0103 






/ 






07/01/93 




.0211 






/ 






07/01/93 




.0214 




/ 








07/01/93 




.0215 






/ 






07/01/93 




.0216 - .0218 




/ 








07/01/93 




19A NCAC 2B .0300 










/ 






2D .0600 










/ 






21 NCAC 2 .0206 




/ 




/ 




07/01/93 




.0214 




/ 








07/01/93 




.0215 




/ 




/ 




07/01/93 




8G .0205 




/ 




/ 




09/01/93 




14C .0202 




/ 








07/01/93 




14G .0002 




/ 








07/01/93 




14M .0014 - .0015 




/ 








07/01/93 




14N .0113 










/ 






26 .0203 






/ 






07/01/93 




.0206 


/ 






/ 




07/01/93 




32A .0001 




/ 








07/01/93 




32B .0101 




/ 








07/01/93 




.0209 - .0214 




/ 








07/01/93 




.0215 


/ 










07/01/93 




.0305 




/ 




/ 




07/01/93 




.0309 




/ 








07/01/93 




. .0314 




/ 








07/01/93 




.0315 




/ 




/ 




07/01/93 




32C .0002 - .0003 




/ 








07/01/93 




.0006 




/ 








07/01/93 




34D .0101 


/ 










07/01/93 




.0202 


/ 










07/01/93 




36 .0226 


/ 






/ 




07/01/93 







774 



8:9 



NORTH CAROLINA REGISTER 



August 2, 1993 



LIST OF RULES CODIFIED 



^ 





Citation 


AD 


AM 


RP 


With 
Chgs 


Corr 


Eff. 
Date 


Temp. 
Expires 


21 NCAC 48D .0005 




/ 








07/01/93 




58A .0104 




/ 








07/01/93 




.0107 




/ 




/ 




07/01/93 




.0110 




/ 




/ 




07/01/93 




.0304 


/ 










07/01/93 




.0506 




/ 




/ 




07/01/93 




58C .0207 




/ 








07/01/93 




.0219 


/ 










07/01/93 




.0305 




/ 




/ 




07/01/93 




.0403 




/ 








07/01/93 




58D .0203 - .0204 




/ 




/ 




07/01/93 




.0210 




/ 








07/01/93 





) 



) 



8:9 



NORTH CAROLINA REGISTER 



August 2, 1993 



775 



RRC OBJECTIONS 



1 he Rules Review Cotnmission (RRC) objected to the following rules in accordance with G.S. 
143B-30.2(c). State agencies are required to respond to RRC as provided in G.S. 143B-30.2(d). 



RRC Objection 07/15/93 



RRC Objection 03/18/93 

04/15/93 

Eff. 04/23/93 



ADMINISTRATION 

Department of Administration's Minimum Criteria 

/ NCAC 39 .0101 - Purpose RRC Objection 06/17/93 

1 NCAC 39 .0301 - E.xceptions to Minimum Criteria RRC Objection 06/17/93 

N.C. Low-Level Radioactive Waste Management Authority 

1 NCAC 37 .0306 - Preferred Site 

ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 

Coastal Management 

15A NCAC 7H . 1205 - Specific Conditions 
Rule Returned to Agency 
Agency Filed Rule for Codification Over RRC Objection 

Environmental Health 

15A NCAC 18A .0911 - Marinas: Docking Facilities: Other Mooring Areas RRC Objection 06/17/93 

Agency Revised Rule Obj. Removed 06/1 7/93 

15 A NCAC ISA . 1601 - Definitions RRC Objection 06/17/93 

Agency Revised Rule Obj. Removed 06/17/93 

15A NCAC ISA .1725 - Water Quality RRC Objection 06/17/93 

Agency Revised Rule Obj. Removed 06/17/93 

15A NCAC ISA .261S - Cleaning of Equipment and Utensils RRC Objection 06/17/93 

Agency Revised Rule Obj. Removed 06/1 7/93 

Environmental Management 

15A NCAC 2D .0903 - Recordkeeping: Reporting: Monitoring 

Agency Revised Rule 
15A NCAC 2H .1110 - Implementation 

Agency Responded 

Agency Responded 

Agency Responded 

WTP Operators Certification Commission 

15A NCAC 8A .0102 - Creation RRC Objection 06/17/93 

Agency Repealed Rule Obj. Removed 06/17/93 

15A NCAC 8A .0202 - Duties and Requirements RRC Objection 06/17/93 

Agency Revised Rule Obj. Removed 06/1 7/93 

15A NCA C SB . 0102 - Applying for Examination RRC Objection 06/1 7/93 

Agency Revised Rule Obj. Removed 06/17/93 

15A NCAC SB . 0109 - Requirement for Notification of Change in Address RRC Objection 06/1 7/93 



RRC 


Objection 


06/17/93 


Obj. 


Removed 


06/17/93 


RRC 


Objection 


02/18/93 


Obj. 


Cont 'd 


03/1S/93 


Obj. 


Cont'd 


05/19/93 


Obj. 


Cont'd 


06/17/93 



I 



# 



# 



776 



8:9 



NORTH CAROLINA REGISTER 



August 2, 1993 



RRC OBJECTIONS 



Agency Revised Rule 
I5A NCAC 8B .0201 - Grade I Wastewater Treatment Plant Operator 

Agency Revised Rule 
15A NCAC 8B .0205 - Definitions 

Agency Revised Rule 
15A NCAC 8B .0207 - Grade II Collection System Operator 

Agency Revised Rule 
15A NCAC 88 .0208 - Grade III Collection System Operator 

Agency Revised Rule 
15A NCAC 8B .0209 - Grade IV Collection System Operator 

Agency Revised Rule 
ISA NCAC 8B .0210 - Subsurface System Operator 

Agency Revised Rule 
ISA NCAC 8B .0211 - Land Application/Residuals Operator 

Agency Revised Rule 
ISA NCAC 8B .0212 - Spray Irrigation Operator 

Agency Revised Rule 
ISA NCAC 8B .0S02 - Refiinding of Fees 

Agency Revised Rule 
ISA NCAC 8C .0002 - Rating Scale/Classification/Wastewater Trtmt Facilities 

Agency Revised Rule 



Obj. Removed 


06/17/93 


RRC Objection 


06/17/93 


Obj. Removed 


06/17/93 


RRC Objection 


06/17/93 


Obj. Removed 


06/17/93 


RRC Objection 


06/17/93 


Obj. Removed 


06/17/93 


RRC Objection 


06/17/93 


Obj. Removed 


06/17/93 


RRC Objection 


06/17/93 


Obj. Removed 


06/17/93 


RRC Objection 


06/17/93 


Obj. Removed 


06/17/93 


RRC Objection 


06/17/93 


Obj. Removed 


06/17/93 


RRC Objection 


06/17/93 


Obj. Removed 


06/17/93 


RRC Objection 


06/17/93 


Obj. Removed 


06/17/93 


RRC Objection 


06/17/93 


Obj. Removed 


06/17/93 



HUMAN RESOURCES 



Children's Services 



10 NCAC 41 Q .0201 - Personnel 
Agency Responded 
Rule Returned to Agency 
Agency Filed Rule for Codification Over RRC Objection 

10 NCAC 41 R .0002 - Administration and Organization 



RRC Objection 
Obj. Cont'd 

Eff. 
RRC Objection 



04/1S/93 
OS /1 9/93 
06/17/93 
07/02/93 
07/1S/93 



Mental Health: General 

10 NCAC 14K .031 S - Treatment/Habilitation Planning and Documentation RRC Objection 06/17/93 

Agency Revised Rule Obj. Removed 06/1 7/93 

LICENSING BOARDS AND COMMISSIONS 

Landscape Architects 



21 NCAC 26 .0203 - General Obligations of Practice: Mandatory Standards 

Agency Repealed Rule 
21 NCAC 26 .020S - Forms of Practice 

Rule Returned to Agency 
21 NCAC 26 .0207 - Application of Professional Seal 

Rule Returned to Agency 
21 NCAC 26 .0208 - Improper Conduct 

Rule Returned to Agency 
21 NCAC 26 .0209 - Unprofessional Conduct 

Agency Revised Rule 
21 NCAC 26 .0210 - Dishonest Practice 

Agency Revised Rule 
21 NCAC 26 .0211 - Incompetence 

Agency Revised Rule 



8:9 



NORTH CAROLINA REGISTER 



dards RRC Objection 


06/17/93 


Obj. Removed 


06/17/93 


RRC Objection 


06/17/93 




07/1S/93 


RRC Objection 


06/17/93 




07/1S/93 


RRC Objection 


06/17/93 




07/1S/93 


RRC Objection 


06/17/93 


Obj. Removed 


07/1S/93 


RRC Objection 


06/17/93 


Obj. Removed 


07/1S/93 


RRC Objection 


06/17/93 


Obj. Removed 


07/1S/93 


August 2, 1993 


777 



RRC OBJECTIONS 



21 NCAC 26 .0301 - Examination 
Agency Revised Rule 

Medical Examiners 

21 NCAC 32B .0315 - Ten Year Qualification 
Agency Revised Rule 

Real Estate Commission 

21 NCAC 58A .0110 - Broker-in-Charge 

Agency Revised Rule 
21 NCAC 58A .0506 - Salesman to be Supervised by Broker 

Agency Revised Rule 
21 NCAC 58C .0305 - Course Scheduling 

Agency Revised Rule 

REVENUE 

Ad Valorem Tax Division 

17 NCAC 10 .0506 - Certification Requirements for County Appraisers 

Agency Revised Rule 
17 NCAC 10 .0508 - Certification Requirements for Private Firm Appraisers 

Agency Revised Rule 



RRC Objection 
Obj. Removed 



RRC Objection 
Obj. Removed 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



06/1 7/93 
07/15/93 



06/17/93 
06/1 7/93 



06/17/93 
06/17/93 
06/17/93 
06/17/93 
06/17/93 
06/17/93 



i 



RR C Objection 06/1 7/93 

Obj. Removed 07/15/93 

RR C Objection 06/1 7/93 

Obj. Removed 07/15/93 



I 



i 



778 



8:9 



NORTH CAROLINA REGISTER 



August 2, 1993 



RULES INVALIDATED BY JUDICIAL DECISION 



1 his Section of the Register lists the recent decisions issued by the North Carolina Supreme Court, 
Court of Appeals , Superior Court (when available), and the Office of Administrative Hearings which 
invalidate a rule in the North Carolina Administrative Code. 



I NCAC 5A .0010 - ADMINISTRATIVE PROCEDURES 

Thomas R. West, Administrative Law Judge with the Office of Administrative Hearings, declared two portions 
of Rule 1 NCAC 5A .0010 void as applied in Stauffer Information Systems, Petitioner v. The North Carolina 
Department of Community Colleges and The North Carolina Department of Administration, Respondent and 
The University of Southern California, Intervenor-Respondent (92 DOA 0666). 

10 NCAC 3H .0315(b) - NURSING HOME PATIENT OR RESIDENT RIGHTS 

Dolores O. Nesnow, Administrative Law Judge with the Office of Administrative Hearings, declared Rule 10 
NCAC 3H .0315(b) void as applied in Barbara Jones, Petitioner v. North Carolina Department of Human 
Resources, Division of Facility Services, Licensure Section, Respondent (92 DHR 1192). 

10 NCAC 3R .1124(0 - ACCESSIBILITY TO SERVICES 

Beecher R. Gray, Administrative Law Judge with the Office of Administrative Hearings, declared Rule 10 
NCAC 3R .1124(f) void as applied in Britthuven, Inc. d/b/a Britthaven of Morganton, Petitioner v. N.C 
Department of Human Resources, Division of Facility Services, Certificate of Need Section, Respondent and 
Valdese Nursing Home, Inc. , Respondent-Intervenor (92 DHR 1785). 

ISA NCAC 30 .0201(a)(1)(A) - STDS FOR SHELLFISH BOTTOM & WATER COLUMN LEASES 

Julian Mann IH, Chief Administrative Law Judge with the Office of Administrative Hearings, declared Rule 
15A NCAC 30 .0201(a)(1)(A) void as applied in William R. Willis, Petitioner v. North Carolina Division of 
Marine Fisheries, Respondent (92 EHR 0820). 

15A NCAC 19A .0202(d)(10) - CONTROL MEASURES - HIV 

Brenda B. Becton, Administrative Law Judge with the Office of Administrative Hearings, declared Rule 15A 
NCAC 19A .0202(d)(10) void as applied in ACT-UP TRIANGLE (AIDS Coalition to Unleash Power Triangle), 
Steven Harris, and John Doe, Petitioners v. Commission for Health Services of the State of North Carolina, 
Ron Levine, as Assistant Secretary of Health and State Health Director for the Department of Environment, 
Health, and Natural Resources of the State of North Carolina, William Cobey. as Secretary of the Department 
of Environment, Health, and Natural Resources of the State of North Carolina, Dr. Rebecca Meriwether, as 
Chief, Communicable Disease Control Section of the North Carolina Department of Environment, Health, arui 
Natural Resources, Wayne Babbitt Jr., as Chief of the HIV/STD Control Branch of the North Carolina 
Department of Environment, Health, and Natural Resources, Respondents (91 EHR 0818). 



8:9 



NORTH CAROLINA REGISTER 



August 2, 1993 



779 



CONTESTED CASE DECISIONS 



1 his Section contains the full text of some of the more significant Administrative Law Judge decisions 
along with an index to all recent contested cases decisions which are filed under North Carolina 's 
Administrative Procedure Act. Copies of the decisions listed in the index and not published are available 
upon request for a minimal charge by contacting the Office of Administrative Hearings, (919) 733-2698. 



I 



AGENCY 



CASE 
NUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



ADVONISTRATION 

LMS Express. Inc. v. Adminislration, Div of Purchase &. Contract 
Stauffer Information Systems v. Community Colleges & Administration 
McLaurin Parking Co. v. Admimstration 

ALCOHOLIC BEVERAGE CONTROL COMMISSION 



92 DOA 0735 


Morgan 


06/04/93 




92 DOA 0803 


West 


06/10/93 


8:7 NCR 613 


92 DOA 1662 


Morrison 


04/02/93 


8:3 NCR 320 



Alcoholic Beverage Control Comm. v. Ann Oldham McDowell 
Curtis Ray Lynch v. Alcoholic Beverage Control Comm, 



Partnership, Phillip Owen Edward 
Gary Morgan Neugent 
Kirby Ronald Eldridge 
Gloria Black McDuffie 
Larry Isacc Hailstock 
Anthony Ralph Cecchini Jr. 



Alcoholic Beverage Control Comm. 

Alcoholic Beverage Control Comm. 

Alcoholic Beverage Control Comm. 

Alcoholic Beverage Control Comm. 

Alcoholic Beverage Control Comm. 

Alcoholic Beverage Control Comm. 

Johnnie L. Baker v. Alcoholic Beverage Control Commission 

RAMSAC Enterprises, Inc. v. Alcoholic Beverage Control Comm. 

Alcoholic Beverage Control Comm. v. Aubrey Rudolph Wallace 

Alcoholic Beverage Control Comm. v. Majdi Khalid Wahdan 

Alcoholic Beverage Control Comm. v. Homer Patrick Godwin Jr. 

Alcoholic Bev. Control Comm. v. Mild &, Wild. Inc. Sheila Scholz 

COMMERCE 

Lester Moore V. Weatherization Assistance Program 
CRIME CONTROL AND PUBLIC SAFETY 



92 ABC 0260 


Morgan 


04/01/93 


92 ABC 0288 


Gray 


05/18/93 


92 ABC 0978 


Gray 


05/28/93 


92 ABC 1086 


Becton 


03/22/93 


92 ABC 1 153 


Chess 


04/26/93 


92 ABC 1476 


West 


05/26/93 


92 ABC 1483 


ReiUy 


04/07/93 


92 ABC 1690 


Morgan 


06/29/93 


92 ABC 1735 


Chess 


05/07/93 


93 ABC 0002 


Morrison 


07/02/93 


93 ABC 0047 


Gray 


05/28/93 


93 ABC 0087 


Becton 


07/06/93 


93 ABC 0125 


Reilly 


05/13/93 


93 ABC 1475 


Nesnow 


03/23/93 



93 COM 0105 Gray 



03/08/93 



8:9 NCR 785 



# 



George W. Paylor v. Crime Victims Compensation Comm. 
Steven A. Bamer v. Crime Victims Compensation Comm. 
Anthony L. Hart v. Victims Compensation Comm. 
Jennifer Ayers v. Crime Victims Compensation Comm. 
Janie L. Howard v. Crime Victims Compensation Comm. 
Isabelle Hyman v. Crime Victims Compensation Comm. 
James G. Pellom v. Crime Control & Public Safety 
Norman E. Brown v. Victims Compensation Commission 
Moses H. Cone Mem Hosp v. Victims Compensation Comm. 
Phillip Edward Moore v. Crime Control & Public Safetv' 
John Willie Leach v. Crime Victims Compensation Comm. 
Nellie R. Mangum v. Crime Victims Compensation Comm. 
Constance Brown v. Crime Victims Compensation Comm. 

ENVIRONMENT. HEALTH. AlVD NATURAL RESOURCES 



91 CPS 1286 


Morgan 


04/27/93 


92 CPS 0453 


Nesnow 


06/01/93 


92 CPS 0937 


Chess 


03/01/93 


92 CPS 1 195 


Reilly 


03/19/93 


92 CPS 1787 


Reilly 


03/26/93 


92 CPS 1807 


Morrison 


05/24/93 


93 CPS 0034 


Gray 


05/05/93 


93 CPS 0141 


West 


07/07/93 


93 CPS 0152 


Nesnow 


04/02/93 


93 CPS 0169 


Nesnow 


05/20/93 


93 CPS 0263 


Morrison 


05/20/93 


93 CPS 0303 


Morrison 


06/08/93 


93 CPS 0351 


Reilly 


05/24/93 



8:3 NCR 327 



Charles L. Wilson v. Environment, Health, & Natural Resources 
J. Bruce Mulligan v. Environment. Health, & Nalrual Resources 
Michael D. Barnes v. Onslow Cty Hlth &. Environment and EHR 
William E. Finck v. Environment. Health. & Natural Resources 
Utley C. Stallings v. Environment. Health, &. Natural Resources 
Safeway Removal, Inc. v. Environment, Health, & Natural Res. 
Elizabeth Cily/Pasquotank Cty Mun Airport Aulh v. EHNR 
Service Oil Company v. Environment, Health, & Natural Resources 
City of Salisbury v. Environment. Health. &i Natural Resources 
Willie NL Watford v. Hertford Gates District Health Department 
Standard Speciality Contractors. Inc. v, EHNR 



91 EHR 0664 


Morgan 


03/23/93 


91 EHR 0773 


West 


07/13/93 


9 1 EHR 0825 


Morgan 


06/21/93 


92 EHR 0040 


Gray 


06/14/93 


92 EHR 0062 


Gray 


03/15/93 


92 EHR 0826 


West 


03/12/93 


92 EHR 1140 


Gray 


04/13/93 


92 EHR 1205 


Reilly 


05/27/93 


92 EHR 1472 


Morrison 


04/22/93 


92 EHR 1600 


Chess 


03/24/93 


92 EHR 1660 


Reilly 


05/21/93 



8:1 NCR 83 



t 



780 



8:9 



NORTH CAROLINA REGISTER 



August 2, 1993 



CONTESTED CASE DECISIONS 



^ 



AGENCY 



Shawqi A. Jaher v. Environmenl, Health. &. Natural Resources 
Angela Power, Albert Power v. Children's Special Health Svcs. 
Erhy Lamar Grainger v. Environment. Health. & Natural Resources 
Mustafa E. Essa v. Environment, Health, & Natural Resources 
Rosetta Brimage, Vanessa Pack v. Env. Health of Craven County 
O.C. Stafford /Larry Haney v. Montgomery Cty. Health Dept. 
Bobby Anderson v. Environment, Health, & Natural Resources 
Shell Bros. Disl., Inc. v. Environment, Health, & Natural Resources 
Hamilton Beach/Proctor-Silex,lnc. v. Environment, Health, & Natrl Res 



CASE 




DATE OF 


NUMBER 


ALJ 


DECISION 


92EHR 1784 


Becton 


07/07/93 


93 EHR 0008 


Beclon 


03/24/93 


93 EHR 0071 


Reilly 


06/21/93 


93 EHR 0146 


Gray 


03/29/93 


93 EHR 0206 


Nesnow 


05/20/93 


93 EHR 0224 


Gray 


06/07/93 


93 EHR 0299 


Reilly 


06/07/93 


93 EHR 0308 


Becton 


05/18/93 


93 EHR 0477 


Reilly 


06/29/93 



PUBLISHED DECISION 
REGISTER CITATION 



} 



) 



HUMAN RESOURCES 

O.C. Williams v. Human Resources 
Ronald Terry Brown v. Human Resources 
O.C. Williams v. Human Resources 
Michael L. Ray v. Human Resources 
Randy Chambliss v. Human Resources 
Melvin While v. Human Resources 
Jefferson D. Boylenv. Human Resources 
Jeffery D. Williams v. Human Resources 
Samuel E. Massenberg Jr. v. Human Resources 
William A. Dixon v. Human Resources 
Gregory L. Washington v. Human Resources 
Edwin Clarke v. Human Resources 
Dwayne Allen v. Human Resources 
Edwin Ivester v. Human Resources 
Tyrone Aiken v. Human Resources 
Edward E. Brandon v. Human Resources 
Darrcll W. Russell v. Human Resources 
John Henry Byrd v. Human Resources 
Michelle D. Mobley v. Human Resources 
Robert E. Watson v. Human Resources 
Byron Christopher Williams v. Human Resources 
James W. Bell v. Human Resources 
Charles W, Stall Jr. v. Human Resources 
Eric Stanley Stokes v. Human Resources 
David Rollins v. Human Resources 
Lyndell Greene v. Human Resources 
Leroy Snuggs v. Human Resources 
James P. Miller ID v. Human Resources 
Jack Dulq V. Human Resources 
Larry L. Crowder v. Human Resources 
Carlos Bernard Davis v. Human Resources 
Ocie C. Williams v. Human Resources 
Terrance Freeman v. Human Resources 
Timothy Brian EUer v. Human Resources 
Charles S. Ferrer v. Human Resources 
Ronald H. Lockley v. Human Resources 
Rene Thomas Rittenhouse v. Human Resources 
Thomas Eidward Williamson v. Human Resources 
Roy Chester Robinson v. Human Resources 
Timothy Scott Long v. Human Resources 
William E. Ingram v. Human Resources 
Harold R. Pledger v. Human Resources 
Henry Alston Jr. v. Human Resources 
Michael W. Bentley v. Human Resources 
Dale Robert Stuhre v. Human Resources 
Tommy Malone v. Human Resources 
James C. Dixon Jr. v. Human Resources 
Wallace M. Cooper v. Human Resources 
Jarvis N. Price v. Human Resources 
Thomas L. Yates v. Human Resources 
Robert E. Tarlton Sr. v. Human Resources 
Rodney Devard Clemons v. Human Resources 



91 CSE 
91 CSE 
91 CSE 
91 CSE 
91 CSE 
91 CSE 
91 CSE 
91 CSE 
91 CSE 

91 CSE 

92 CSE 
92 CSE 
92 CSE 
92 CSE 
92 CSE 
92 CSE 
92 CSE 
92 CSE 
92 CSE 
92 CSE 
92 CSE 
92 CSE 
92 CSE 
92 CSE 
92 CSE 
92 CSE 
92 CSE 
92 CSE 
92 CSE 
92 CSE 
92 CSE 
92 CSE 
92 CSE 
92 CSE 
92 CSE 
92 CSE 
92 CSE 
92 CSE 
92 CSE 
92 CSE 
92 CSE 
92 CSE 
92 CSE 
92 CSE 
92 CSE 
92 CSE 
92 CSE 
92 CSE 
92 CSE 
92 CSE 
92 CSE 
92 CSE 



0036*= 

0249 

1158*= 

1173 

1187 

1192 

1217 

1231 

1249 

1277 

0075 

0129 

0196 

0268 

1217 

1237 

1249 

1250 

1256 

1265 

1270 

1311 

1313 

1316*' 

1334 

1346 

1360 

1361 

1374 

1396 

1404 

1405 

1411 

1414 

1416 

1418 

1421 

1422 

1423 

1445 

1450 

1455 

1460 

1512 

1516 

1520 

1522 

1527 

1531 

1535 

1536 

1539 



Morgan 

Morgan 

Morgan 

Morgan 

Morgan 

Morgan 

Morgan 

Morgan 

Morgan 

Morrison 

Morgan 

Morgan 

Morgan 

Nesnow 

Gray 

Gray 

Becton 

Reilly 

Nesnow 

Reilly 

Nesnow 

Nesnow 

Mann 

Reilly 

Morrison 

Nesnow 

Morrison 

Gray 

Gray 

Reilly 

Reilly 

Mann 

Mann 

Reilly 

Mann 

Nesnow 

Nesnow 

Reilly 

Reilly 

Becton 

Reilly 

Morrison 

Becton 

Nesnow 

Reilly 

Mann 

Becton 

Reilly 

Morrison 

Gray 

Gray 

Gray 



03/30/93 
05/17/93 
03/30/93 
05/17/93 
04/28/93 
05/17/93 
05/17/93 
04/28/93 
05/17/93 
03/04/93 
04/01/93 
05/17/93 
03/31/93 
03/30/93 
06/17/93 
04/16/93 
04/20/93 
06/04/93 
04/15/93 
05/06/93 
04/26/93 
05/10/93 
07/06/93 
03/25/93 
05/06/93 
04/16/93 
04/15/93 
04/16/93 
07/16/93 
04/15/93 
04/15/93 
06/25/93 
06/07/93 
04/20/93 
04/15/93 
04/20/93 
04/20/93 
04/20/93 
04/15/93 
06/29/93 
04/15/93 
05/20/93 
06/29/93 
06/09/93 
05/11/93 
05/07/93 
05/11/93 
05/11/93 
05/12/93 
05/10/93 
05/17/93 
05/10/93 



Consolidated cases. 



8:9 



NORTH CAROLINA REGISTER 



August 2, 1993 



781 



CONTESTED CASE DECISIONS 



AGENCY 



James A. Coleman v. Human Resources 

Romeo F. Skapple v. Human Resources 

Jeffrey L. Garrelt v. Human Resources 

Edward Kirk v. Human Resources 

William C. Huhbard v. Human Resources 

Edward Filch v. Human Resources 

David Robineltev. Human Resources 

Kit C. Elmore v. Human Resources 

Bnan C. Gilmore v. Human Resources 

Philip S. Piercy v. Human Resources 

Anthony McLaughlin v. Human Resources 

Johnny W. Cooke v. Human Resources 

Isaac Maxwell v. Human Resources 

Donald J. Ray v. Human Resources 

Charles Wayne Pierce v. Human Resources 

Donna G. Knotls v. Human Resources 

McKinley Clybum v. Human Resources 

Jeffery D. Williams v. Human Resources 

Billy Smith v. Human Resources 

Anthony Curry v. Human Resources 

Larry W. Golden v. Human Resources 

William J. Carter v. Human Resources 

Mark W. Dean v. Human Resources 

Eric Stanley Stokes v. Human Resources 

Patrick Floyd v. Human Resources 

Dennis W. Nolan v. Human Resources 

Ira Alston Jr. v. Human Resources 

Ronald G- Bolden v. Human Resources 

Marvin Holley v. Human Resources 

Eddie Short v. Human Resources 

Michael Tywan Marsh v. Human Resources 

Leroy Jones v. Human Resources 

Ronald Dean Lowery v. Human Resources 

James E. Blakney v. Human Resources 

Barbara W. Catlett v. Human Resources 

Laurel Langford v. Human Resources 

Ida Diane Davis v. Human Resources 

Hatsuko Klein v. Human Resources 

Leon Barbee v. Human Resources 

Dialysis Care of North Carolina. Inc., d/b/a Dialysis Care of 
Cumberland County v. Human Resources, Division of Facility 
Services. Certificate of Need Section, and Bio-Medical 
Applications of FayetteviUe d/li/a Fayelteville Kidney Center. 
Webb-Lohavichan-Melton Rentals, Bio-Medical Applications 
of North Carolina, Inc., d/b/a BMA of Raeford and Webb- 
Lohavichan Rentals 

Dialysis Care of North Carolina, Inc., d/b/a Dialysis Care of 
Cumberland County v. Human Resources, Division of Facility 
Services, Certificate of Need Section, and Bio-Medical 
Applications of Fayelteville d/b/a FayetteviUe Kidney Center, 
Webb-Lohavichan-Mellon Rentals. Bio-Medical Applications 
of North Carolina, Inc.. d/b/a BMA of Raeford and Webb- 
Lohavichan Rentals 

Bio-Medical Applications of North Carolina. Inc.. d/b/a BMA 
of Raeford. Webb-Lohavichan-Melton Rentals, Bio-Medical 
Applications of North Carolina, Inc., d/b/a BMA of Fayelteville 
d/b/a Fayelteville Kidney Center and Webb-Lohavichan Rentals 
v. Human Resources. Division of Facility Services, Certificate of 
Need Section and Dialysis Care of North Carolina. Inc., d/b/a 
Dialysis Care of Hoke County 

Renal Care of Rocky Mount, Inc. v. Human Resources. Division of 
Facility Services, Certificate of Need Section, and Bio-Medical 
Applications of North Carolina, Inc.. d/b/a BMA of Tarboro. 
Rocky Mount Nephrology Associates. Inc.. Bio-Medical 
Applications of North Carolina. Inc., d/b/a BMA of Rocky Mount 
d/b/a Rocky Mount Kidney Center, and Rocky Mount Kidney Center 
Associates 

James H. Hunt Jr. v. Division of Medical Assistance 



CASE 




DATE OF 


NUMBER 


ALJ 


DECISION 


92 CSE 1540 


Reilly 


05/11/93 


92 CSE 1545 


Gray 


04/26/93 


92 CSE 1557 


Gray 


04/22/93 


92 CSE 1560 


Gray 


06/29/93 


92 CSE 1562 


Mann 


05/12/93 


92 CSE 1572 


Reilly 


05/11/93 


92 CSE 1573 


Mann 


07/14/93 


92 CSE 1575 


Gray 


07/16/93 


92 CSE 1576 


Gray 


04/26/93 


92 CSE 1577 


Gray 


07/16/93 


92 CSE 1582 


Gray 


06/29/93 


92 CSE 1585 


Becton 


05/11/93 


92 CSE 1589 


Reilly 


04/26/93 


92 CSE 1592 


Mann 


05/19/93 


92 CSE 1596 


Morrison 


07/14/93 


92 CSE 1611 


Morrison 


07/16/93 


92 CSE 1623 


Morrison 


05/20/93 


92 CSE 1626 


Mann 


05/19/93 


92 CSE 1629 


Reilly 


03/25/93 


92 CSE 1631 


Reilly 


03/25/93 


92 CSE 1633 


Reilly 


03/25/93 


92 CSE 1637 


Nesnow 


05/19/93 


92 CSE 1638 


Reilly 


07/15/93 


92 CSE 1652*^ 


Reilly 


03/25/93 


92 CSE 1663 


Reilly 


05/20/93 


92 CSE 1670 


Morrison 


06/25/93 


92 CSE 1703 


Becton 


06/16/93 


92 CSE 1706 


Mann 


06/25/93 


92 CSE 1713 


Mann 


06/08/93 


92 CSE 1714 


West 


07/15/93 


92 CSE 1716 


Gray 


06/17/93 


92 CSE 1718 


Gray 


06/17/93 


92 CSE 1771 


West 


07/15/93 


92 CSE 1779 


Nesnow 


05/13/93 


92 DCS 0577 


West 


03/15/93 


92 DCS 1 181 


Gray 


05/04/93 


92 DCS 1200 


Gray 


03/29/93 


92 DCS 1271 


Reilly 


05/05/93 


92 DHR 0658 


Morrison 


04/30/93 


92DHR 1109»* 


Morgan 


06/22/93 



PUBLISHED DECISION 
REGISTER CITATION 



92 DHR 1110** Morgan 06/22/93 



92 DHR 1116** Morgan 06/22/93 



92 DHR 1120 Gray 



06/18/93 



I 



# 



8:5 NCR 441 



8:4 NCR 392 
8:8 NCR 687 



8:8 NCR 687 



8:8 NCR 687 



8:8 NCR 687 



I 



92 DHR 1145 



Becton 



05/13/93 



8:5 NCR 443 



782 



8:9 



NORTH CAROLINA REGISTER 



August 2, 1993 



CONTESTED CASE DECISIONS 



AGENCY 



Barbara Jones v. Human Resources 

Joyce P. Williams v. Human Resources 

Snoopy Day Care, Diane Hamby v. Child Day Care Licensing 

Cynthia Reed v. Human Resources 

Helm's Rest Home. Ron J. Schimpf/Edith H. Wilson v. Human Resources 

Jo Ann Kinsey v. NC Memorial Hospital Betty Hullon, Volunteer Svc. 

Amy Clara Williamson v- NC Mem Hosp Betty Hutlon. Volunteer Svc. 

Betty Butler V. Human Resources 

Wayne Sanders and Brenda Sanders v. Human Resources 

Samuel Benson v. Office of Admin. Hearings for Medicaid 

Fannie Lewis v. Human Resources 



CASE 




DATE OF 


NUMBER 


ALJ 


DECISION 


92DHR 1192 


Nesnow 


04/02/93 


92 DHR 1275 


Gray 


03/15/93 


92 DHR 1320 


Morgan 


05/21/93 


92 DHR 1329 


Chess 


05/10/93 


92 DHR 1604 


Reilly 


05/10/93 


92 DHR 1612 


Chess 


03/08/93 


92 DHR 1613 


Chess 


03/08/93 


92 DHR 1614 


Chess 


03/09/93 


92 DHR 1699 


Reilly 


06/07/93 


93 DHR 0010 


Becton 


03/11/93 


93 DHR 0379 


Gray 


06/28/93 



PUBLISHED DECISION 
REGISTER CITATION 



8:3 NCR 313 



8:7 NCR 632 



INSURANCE 



Carolyn M. Hair v. St Employees Comprehensive Major Medical 

JUSTICE 

Jennings Michael Bostic v. Sheriffs' Ed. &. Traning Slds. Comm. 
Colin Carlisle Mayers v. Sheriffs' Ed. & Training Stds. Comm. 
Jennings Michael Bostic v. Sheriffs' Ed. &. Traning Stds. Comm. 
George Wilton Hawkins v. Criminal Justice Ed. & Training Stds. Comm. 
Marilyn Jean Britt v. Criminal Justice Ed. & Training Stds. Comm. 
Tim McCoy Deck v. Criminal Justice Ed. & Training Stds. Comm. 
Richard Zander Frink v. Criminal Justice Ed. & Traning Slds. Comm. 
Sherri Ferguson Revis v. Sheriffs' Ed. & Training Stds. Comm. 
Mark TTiomas v. Sheriffs' Ed, & Training Standards Commission 
George Wilton Hawkins v. Sheriffs' Ed. & Training Stds. Comm. 
N.C. Alarm Systems Licensing Bd. v. Eric Hoover 
N.C. Alarm Systems Licensing Bd. v. Vivian Darlene Gaither 
William B. Lipscomb v. Private Protective Services Board 

LABOR 



92 INS 1464 



Chess 



03/10/93 



92 DOJ 0656*' 


West 


06/22/93 


92 DOJ 0761 


Morrison 


05/10/93 


92 DOJ 0829 »' 


West 


06/22/93 


92 DOJ 1081*' 


Morgan 


07/09/93 


92 DOJ 1088 


Morrison 


03/16/93 


92 DOJ 1367 


Chess 


04/01/93 


92 DOJ 1465 


Nesnow 


05/28/93 


92 DOJ 1756 


Gray 


03/23/93 


93 DOJ 0151 


West 


04/21/93 


93 DOJ 0156*' 


Morgan 


07/09/93 


93 DOJ 0201 


Becton 


07/12/93 


93 DOJ 0202 


Chess 


05/10/93 


93 DOJ 0458 


Morrison 


06/01/93 



Greensboro Golf Center, Inc. v. Labor 
Ronald Dennis Hunt v. Labor 
Jeffrey M. McKinney v. Labor 

MORTUARY SCIENCE 



92 DOL 0204 


Nesnow 


04/15/93 


92 DOL 1319 


Morgan 


06/17/93 


92 DOL 1333 


Morrison 


06/21/93 



Board oi' Mortuary Science v. Triangle Funeral Chapel, Inc. 
STATE PERSONNEL 



92 BMS 1169 



Reilly 



04/29/93 



8:4 NCR 396 



Frances K. Pate v. Transportation 

Lawrence D. Wilkie, Jerry R. Evans, Jules R. Hancart, 

James H. Johnson. James D. Fishcl v. Justice 
Lawrence D. Wilkie, Jerry R. Evans, Jules R. Hancart, 

James H. Johnson, James D. Fishel v. Justice 
Lawrence D. Wilkie, Jerry R. Evans, Jules R. Hancart, 

James H. Johnson, James D. Fishel v. Justice 
Lawrence D. Wilkie, Jerry R. Evans, Jules R. Hancart. 

James H. Johnson, James D. Fishel v. Justice 
Lawrence D. Wilkie, Jerry R. Evans, Jules R. Hancart, 

James H. Johnson, James D. Fishel v. Justice 
Bemie B. Kellly v. Correction 
Brenda G, Mitchell v. Correction 
Clayton Brewer v. North Carolina Slate University 
Sherman Daye v. Transportation 
Donnie M. White v. Correction 

Gregory Samuel Parker v. Environment. Health, Sl Natural Resources 
Rence E. Shepherd v. Winston-Salem Slate University 
Eva Dockery v. Human Resources 

Lee P. Crosby v. Michael Kelly, William Meyer and EHR 
Gregory Samuel Parker v. Environment. Health, & Natural Resources 
Willie Granville Bailey v. Winston-Salem State University 
Julia Spinks v. Environment, Health, & Natural Resources 
James B. Price v. Transportation 



88 OSP 0340 


Morrison 


05/03/93 




90 OSP 1064*" 


Mann 


05/04/93 




90 OSP 1065*' 


Mann 


05/04/93 




90 OSP 1066** 


Mann 


05/04/93 




90 OSP 1067** 


Mann 


05/04/93 




90 OSP 1068** 


Mann 


05/04/93 




91 OSP 0344 


Morrison 


05/27/93 




91 OSP 0625 


West 


03/08/93 


8:1 NCR 75 


91 OSP 0941 


West 


04/02/93 


8:3 NCR 306 


91 OSP 0951 


West 


05/07/93 




91 OSP 1236 


Morgan 


04/05/93 




91 OSP 1344*' 


Chess 


05/20/93 




91 OSP 1391 


Morgan 


04/28/93 




92 OSP 0010 


Chess 


05/03/93 




92 OSP 0056 


Gray 


06/07/93 




92 OSP 0188** 


Chess 


05/20/93 




92 OSP 0285 


Morrison 


03/10/93 




92 OSP 0313 


Becton 


04/12/93 


8:4 NCR 382 


92 OSP 0375 


Gray 


04/13/93 





8:9 



NORTH CAROLINA REGISTER 



August 2, 1993 



783 



CONTESTED CASE DECISIONS 



AGENCY 



I. Cary Nailling v. UNC-CH 

Deborah Barber v. Correction 

Laveme B. Hill v. Transportation 

Jimmy D. Wilkins v. Transporiaiion 

Sarah W. Brilt v. Human Resources. C.A. Dillon School, CPS 

Herman James Goldstein v. UNC-Chapel Hill et al. 

Glinda C. Smith v. Wildlife Resources Commission 

Cindy G. Bartlett v. Correction 

William Kenneth Smith Jr. v. Broughlon Hospital (Human Resources) 

Larr> O. Nobles v. Human Resources 

Willie Thomas Hope v. Transportation 

David Scales v. Correction 

Suzanne Ransley Hill v. Environment. Health, & Nat. Res. 

Herman James Goldstein v. UNC-Chapel Hill et al. 

John B. Sauls v. Wake County Health Department 

Gilbert Jaeger v. Wake County AJcoholism Treatment Center 

Joseph Henry Bishop v. Environment, Health. &. Natural Res. 

Willie L. Hudson V. Correction 

Brenda K. Campbell v. Employment Security Commission 

Christie L. Guthrie v. Environment. Health. & Natural Resources 

James B. Price v. Transportation 

Jerry L. Jones v. N.C.S.U. Physical Plant 

Belly Bradsherv. UNC-CH 

Jamal Al Bakkat-Morris v. Glenn Sexton (DSS) 

Brenda Kay Barnes v. Human Resources 

Larry G. Riddle v. Correclion, Division of Prisons 

Stevie E. Dunn v. Polk Youth Center 

Buford D. Vieregge Jr. v. N.C. State University, University- Dining 

Karen Canter v. Appalachian State University 

Barbara A. Johnson v. Human Resources 

Carrie P. Smith v. County of Stanly 

George W. Allen v. Human Resources. Correction, Agri &. EHNR 

William G. Fisher v. St Bd of Ed. Albermarle City Schools & Bd of Ed 

Grace Jean Washington v, Caswell Center 

Clifton E. Simmons v. Correction 

Willie L. James v. Caswell Center 

Ir^.'ing S. Rodgers v. C.A. Dillon. Division of Youth Services 

Michael L. Pegram v. Correction 

Jerr> D. Doss Sr. v. Correction 

Debbie Renee Robinson v. Correction 

Michael L. Pegram v. Correction 



CASE 




DATE OF PUBLISHED DECISION 


NUMBER 


AL,f 


DECISION REGISTER CITATION 


92 OSP 0394 


Becton 


04/20/93 


92 OSP 0396 


Chess 


03/04/93 


92 OSP 0431*" 


West 


03/08/93 


92 OSP 0432*" 


West 


03/08/93 


92 OSP 0455 


West 


05/26/93 8:6 NCR 484 


92 OSP 0634 


Morrison 


05/04/93 


92 OSP 0653 


Morrison 


03/12/93 


92 OSP 0671 


Morgan 


06/08/93 


92 OSP 0684 


Becton 


05/10/93 


92 OSP 0732 


Mann 


04/23/93 


92 OSP 0947 


Morgan 


03/23/93 


92 OSP 0989 


Chess 


06/24/93 


92 OSP 0992 


ReiUy 


03/18/93 8:2 NCR 224 


92 OSP 1047 


Morrison 


05/04/93 


92 OSP 1142 


Reilly 


03/08/93 8:1 NCR 88 


92 OSP 1204 


Reilly 


05/10/93 


92 OSP 1243 


Reilly 


03/05/93 


92 OSP 1468 


Becton 


05/26/93 


92 OSP 1505 


Morrison 


03/17/93 


92 OSP 1555 


Becton 


05/31/93 


92 OSP 1657 


Mann 


03/19/93 


92 OSP 1661 


Chess 


07/06/93 


92 OSP 1733 


Becton 


03/30/93 


92 OSP 1741 


Becton 


03/24/93 


92 OSP 1768 


Morrison 


03/17/93 


92 OSP 1774 


Gray 


04/26/93 


92 OSP 1789 


Becton 


04/19/93 


92 OSP 1796 


Morrison 


05/27/93 


93 OSP 0079 


Reilly 


06/15/93 


93 OSP 0103 


Morrison 


03/17/93 


93 OSP 0109 


Becton 


04/01/93 


93 OSP 0111 


Reilly 


04/16/93 


93 OSP 0134 


Becton 


04/20/93 


93 OSP 0153 


Morgan 


06/03/93 


93 OSP 0159 


Morrison 


04/21/93 


93 OSP 0171 


Morgan 


05/27/93 


93 OSP 0177 


West 


04/21/93 


93 OSP 0275«* 


Reilly 


06/28/93 


93 OSP 0287 


Gray 


05/17/93 


93 OSP 0383 


Nesnow 


06/07/93 


93 OSP 0472** 


Reilly 


06/28/93 



c 



# 



STATE TREASURER 



Herman D, Brooks v. Bd of Trustees rTeachers' & St Emp Ret Sys 91 DST 0566 

Henrietta Sandlin v. Teachers" & State Emp Comp Major Medical Plan 92 DST 0305 

Mary Alyce Carmichael v. Bd-Trustees/Teachers' & St Emp Ret Sys 92 DST 1506 



Gray 04/13/93 

Morgan 04/12/93 
Chess 04/08/93 



TRANSPORTATION 



\'ates Construction Co., Inc. \'. Transportation 
UNIVERSITY OF NORTH CAROLINA HOSPITALS 

Jacqueline Florence V. UNC Hospitals 



92 DOT 1800 Morgan 03/25/93 



93 UNC 0355 



Becton 



06/16/93 



# 



784 



8:9 



NORTH CAROLINA REGISTER 



August 2, 1993 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 



COUNTY OF EDGECOMBE 



IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 

93 ABC 0087 



N.C. ALCOHOLIC BEVERAGE CONTROL 
COMMISSION, 

Petitioner, 



MAJDI KHALID WAHDAN, 
T/A PRESTO FOOD STORE #6, 
Respondent. 



RECOMMENDED DECISION 



This matter was heard before Brenda B. Becton, Administrative Law Judge, on May 19, 1993, in 
Williamston, North Carolina. 

APPEARANCES 

Petitioner: Larry S. Height, Chief Agency Legal 

Specialist, N.C. ABC Commission, Raleigh, North Carolina. 

Respondent: Jesse Matthewson Baker, Attorney, Tarboro, 
North Carolina. 

ISSUES 

L Whether the Respondent violated the ABC laws by: 

Permittee knowingly selling alcoholic beverages to an intoxicated person on 
the licensed premises on or about October 9, 1992 at 11:11 p.m., in viola- 
tion of section 18B-305(a) of the North Carolina General Statutes. 

2. What penalty, if any, should be imposed under section 18B-I04 of the North Carolina General 

Statutes? 

EXHIBITS 

The exhibits listing was omitted from this publication. You may obtain a copy by contacting this 
office. 

FINDINGS OF FACT 

From official documents in the file, sworn testimony of the witnesses, and other competent and 
admissible evidence, it is found as a fact that: 

L Majdi Khalid Wahdan owns and operates Presto Food Store #6 which is located in Edgecombe 

County, North Carolina. 

2. The Respondent holds on premises beer and off-premises fortified and unfortified wine permits. 



8:9 



NORTH CAROLINA REGISTER 



August 2, 1993 



785 



CONTESTED CASE DECISIONS 



3. On October 1 1 , 1992, at approximately 1 1 :00 p.m. John J. Simmons, an ALE agent, went to Presto 
Food Store #6 to conduct a surveillance of its operation. 

4. Presto Food Store #6 is located in shopping strip that contains several other businesses, including two 
barbershops and an ABC outlet. 

5. Agent Simmons parked in the parking lot near the ABC outlet, approximately fifteen feet away from 
the entrance to the Presto Food Store. The store was well lighted both inside and outside and 
Simmons observed Mr. Wahdan performing several work related tasks. 

6. Agent Simmons observed a small passenger car with three black male occupants situated about twenty 
feet from the store and five feet away from where he was parked. 

7. Agent Simmons saw one of car's occupants get out and recognized him as being Vinson Pender. 

8. Mr. Pender's eyes were bloodshot and his clothes were disarranged. He exited the car very slowly 
and had difficulty maintaining his balance as he walked toward the store. 

9. Mr. Pender entered the Presto Food Store and walked to the beer cooler where he stood swaying for 
a few moments before he opened the cooler and selected two 40 ounce bottles of St. Ives. 

10. Agent Simmons watched as Mr. Pender and Mr. Wahdan appeared to have a conversation and then 
money was exchanged. Mr. Wahdan placed Mr. Pender's purchase in a brown bag. 

11. At the time that Mr. Pender entered the Presto Food Store, Mr. Wahdan was busy cleaning up in 
preparation for closing the store for the night. 

12. There are several rows of shelves between the counter where Mr. Wahdan was working and the beer 
cooler. 

13. Mr. Wahdan did not see Mr. Pender swaying back and forth in front of the beer cooler. 

14. Mr. Pender is a regular customer at the Presto Food Store and Mr. Wahdan testified that Mr. 
Pender's eyes are always red. 

15. When Mr. Pender brought his selection to the checkout counter he said "good evening" to Mr. 
Wahdan. 

16. The checkout counter in the Presto Food Store is approximately two feet wide. 

17. Mr. Wahdan watched Mr. Pender search through his wallet for the smallest denomination of money 
to pay for the beer which cost $1.89 for each bottle. 

18. Mr. Wahdan testified that he did not detect any odor of alcohol emanating from Mr. Pender. 

19. After Mr. Pender left, Mr. Wahdan closed the store. 

20. When Mr. Pender returned to the car in the parking lot. Agent Simmons asked him for some 
identification. At that time, Simmons observed that Mr. Pender's speech was slurred, making it 
difficult to understand him, and he detected the odor of alcohol. 

21 . When Mr. Wahdan came out of the store. Agent Simmons approached him and had him observe while 
he asked Mr. Pender to touch his nose with his left index finger several times; Mr. Pender touched 
his left cheek. Simmons repeated the request with respect to Mr. Pender's right index finger, and 
Mr. Pender touched his right cheek. 



786 8:9 NORTH CAROLINA REGISTER August 2, 1993 



CONTESTED CASE DECISIONS 



") 



) 



J 



22. Mr. Pender refused to blow into a AJco-Sensor. 

23. Agent Simmons was of the opinion that Mr. Pender was extremely intoxicated. 

24. There was no testimony that Agent Simmons observed Mr. Wahdan watching Mr. Pender as he 
staggered and swayed about the store. 

25. There is no evidence regarding how close Agent Simmons was to Mr. Pender when he was first able 
to detect the odor of alcohol. 

CONCLUSIONS OF LAW 

1. The Petitioner has the burden of proof in this contested case, and one of the elements that the 
Petitioner must prove is that the Respondent knowingly sold alcohol to an intoxicated person. In 
order to meet this burden, the Petitioner must establish by the greater weight of the evidence that Mr. 
Pender was intoxicated and that the Respondent knew or should have known that Mr. Pender was 
intoxicated. See, Hutchens \\ Hankins , 63 N.C. App. 1, 303 S.E.2d 584 (1983). 

2. Vinson Pender was intoxicated within the meaning of the term as it is used in Chapter 18B of the 
North Carolina General Statutes at and after 11:09 p.m. on October 9, 1992 when he entered the 
Respondent's store. Presto Food Store. 

3. In order to establish that Mr. Wahdan knew or should have known that Mr. Pender was intoxicated, 
the Petitioner must present evidence that Mr. Wahdan observed Mr. Pender at a time when Mr. 
Pender's conduct or appearance was such that he was obviously intoxicated. The only evidence on 
this point is that Agent Simmons observed Mr. Wahdan and Mr. Pender apparently having some 
conversation while the beer sale was being consummated. There is no evidence that Mr. Pender was 
close enough to Mr. Wahdan for him to have detected an odor of alcohol. There is no evidence that 
Mr. Pender's speech was slurred, if and when he said anything to Mr. Wahdan while he was paying 
for the beer. There is no evidence that Mr. Pender was swaying back and forth while he was at the 
checkout counter. And finally, there is no evidence that Mr. Wahdan was looking at Mr. Pender at 
the times that Agent observed that Mr. Pender was having difficulty maintaining his balance. 

4. The Petitioner has failed to prove by the greater weight of the evidence that the Respondent violated 
North Carolina General Statutes section I8B-305(a) by knowingly selling alcohol to an intoxicated 
person. 

RECOMMENDED DECISION 

The N.C. Alcoholic Beverage Commission will make the Final Decision in this contested case. It 
is recommended that the Commission adopt the Findings of Fact and Conclusions of Law set forth above and 
that the Commission not take action against the permittee in this contested case. 

ORDER 

It is hereby ordered that the agency serve a copy of the Final Decision on the Office of Administrative 
Hearings, P.O. Drawer 27447, Raleigh, N.C. 27611-7447, in accordance with North Carolina General 
Statutes section 150B-36(b). 

NOTICE 

Before the the agency makes the FINAL DECISION, it is required by North Carolina General Statutes 
section 150B-36(a) to give each party an opportunity to file exceptions to this RECOMMENDED DECISION, 
and to present written arguments to those in the agency who will make the final decision. 



8:9 NORTH CAROLINA REGISTER August 2, 1993 787 



CONTESTED CASE DECISIONS 



The agency is required by North Carolina General Statutes section 150B-36(b)to serve a copy of the 
Final Decision on all parties and to furnish a copy to the Parties' attorney of record. 



This the 6th day of July, 1993. 



r 



Brenda B. Becton 
Administrative Law Judge 



% 



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788 8:9 NORTH CAROLINA REGISTER August 2, 1993 



NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM 



1 he North Carolina Administrative Code (NCAC) has four major subdivisions of rules. Two of these, 
titles and chapters, are mandatory. The major subdivision of the NCAC is the title. Each major 
department in the North Carolina executive branch of government has been assigned a title number. 
Titles are further broken down into chapters which shall be numerical in order. The other two, 
subchapters and sections are optional subdivisions to be used by agencies when appropriate. 



TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE 
TITLE DEPARTMENT LICENSING BOARDS CHAPTER 



1 


Administration 


Architecture 


2 


2 


Agriculture 


Auctioneers 


4 


3 


Auditor 


Barber Examiners 


6 


4 


Economic & Community Development 


Certified Public Accountant Examiners 


8 


5 


Correction 


Chiropractic Examiners 


10 


6 


Council of State 


General Contractors 


12 


7 


Cultural Resources 


Cosmetic Art Examiners 


14 


8 


Elections 


Dental Examiners 


16 


9 


Governor 


Dietetics/Nutrition 


17 


10 


Human Resources 


Electrical Contractors 


18 


11 


Insurance 


Electrolysis 


19 


12 


Justice 


Foresters 


20 


13 


Labor 


Geologists 


21 


14A 


Crime Control & Public Safety 


Hearing Aid Dealers and Fitters 


22 


15A 


Environment, Health, and Natural 


Landscape Architects 


26 




Resources 


Landscape Contractors 


28 


16 


Public Education 


Marital and Family Therapy 


31 


17 


Revenue 


Medical Examiners 


32 


18 


Secretary of State 


Midwifery Joint Committee 


33 


19A 


Transportation 


Mortuary Science 


34 


20 


Treasurer 


Nursing 


36 


*21 


Occupational Licensing Boards 


Nursing Home Administrators 


37 


22 


Administrative Procedures 


Occupational Therapists 


38 


23 


Community Colleges 


Opticians 


40 


24 


Independent Agencies 


Optometry 


42 


25 


State Personnel 


Osteopathic Examination & Reg. (Repealed) 


44 


26 


Administrative Hearings 


Pharmacy 


46 






Physical Therapy Examiners 


48 






Plumbing, Heating & Fire Sprinkler Contractors 


50 






Podiatry Examiners 


52 






Practicing Counselors 


53 






Practicing Psychologists 


54 






Professional Engineers & Land Surveyors 


56 






Real Estate Commission 


58 






"Reserved" 


59 






Refrigeration Examiners 


60 






Sanitarian Examiners 


62 






Social Work 


63 






Speech & Language Pathologists & Audiologists 


64 






Veterinary Medical Board 


66 



Note: Title 21 contains the chapters of the various occupational licensing boards. 



8:9 



NORTH CAROLINA REGISTER 



August 2, 1993 



789 



CUMULATIVE INDEX 



CUMULATIVE INDEX 

(April 1993 - March 1994) 

Pages Issue 

1 - 92 1 - April 

93 - 228 2 - April 

229 - 331 3 - May 

332 - 400 4 - May 

401 - 455 5 - June 

456 - 502 6 - June 

503 - 640 7 - July 

641 - 708 8 - July 

709 - 792 9 - August 



f 



Unless otherwise identified, page references in this Index are to proposed rules. 



ADMINISTRATION 

Administration's Minimum Criteria, 5 

Low-Level Radioactive Waste Management Authority, 232 

ADMINISTRATIVE HEARINGS 

Civil Rights Division, 370 
General, 366 
Rules Division, 367 

AGRICLXTLUE 

N.C. State Fair, 506 
Plant Industry, 513 
Veterinary Division, 515 

CO.\CVIERCE 

Alcoholic Be\erage Control Commission, 408, 711 

Banking Commission, 408 

Savings Institutions Division: Savings Institutions Commission, 461 

ENVIRONMENT, HEALTH, .4ND NATLTIAL RESOLTiCES 

Coastal Management, 279, 571 

Departmental Rules, 465 

Environmental .Management, 210, 556, 658 

Health Services. 283, 335. 425, 465, 572, 709, 762 

Marine Fisheries, 28, 568 

NPDES Permit, 710 

Soil and Water Conser\ation. 214 

Wildlife Resources Commission. 32. 663 

Zoological Park, 337 

FINAL DECISION LETTERS 

Votin2 Rights Act, 4, 407, 460 



f 



t 



790 8:9 NORTH CAROLINA REGISTER August 2, 1993 



CUMULATIVE INDEX 



"^ 



GOVERNOR/LT. GOVERNOR 

Executive Orders, 1, 93, 229, 332, 401, 456, 641 

HUMAN RESOURCES 

Deaf and Hard of Hearing, Services for the. 650 

Facility Services, 94 

Medical Assistance, 25, 414, 553, 712 

Medical Care Commission, 644 

Mental Health, Developmental Disabilities and Substance Abuse Services, 7, 413, 516 

Social Services Commission, 237, 733 

INSURANCE 

Actuarial Services, 555, 657 

Medical Database Commission, 463, 737 

JUSTICE 

Alarm Systems Licensing Board, 761 

Attorney General, Office of the, 28 

Criminal Justice Education and Training Standards Commission, 253 

Criminal Justice Standards Division, 241 

Private Protective Services Board, 252 

Sheriffs' Education and Training Standards Commission, 738 

LABOR 

OSHA, 97, 231, 278 

LICENSING BOARDS 

Architecture, 43 

Dental Examiners, State Board of, 763 

Foresters, Registration for, 674 

Geologists, Board of, 285 

Medical Examiners, Board of, 591 

Mortuary Science, Board of, 45, 342 

Nursing Home Administrators, 346 

Pharmacy, Board of, 47, 354 

Physical Therapy Examiners, 53, 767 

Plumbing, Heating and Fire Sprinkler Contractors, 360 

Real Estate Commission, 53, 364 

Social Work, Certification Board for, 428 

LIST OF RULES CODIFIED 

List of Rules Codified, 61, 290, 432, 593, 769 

PUBLIC EDUCATION 

Elementary and Secondary Education, 427, 470 

STATE PERSONNEL 

Office of State Personnel, 286 

STATE TREASURER 

Retirement Systems, 337 

TAX REVIEW BOARD 

Orders of Tax Review, 503 



8:9 NORTH CAROLINA REGISTER August 2, 1993 791 



CUMULATIVE INDEX 



TRANSPORTATION 

Highways, Division of, 669 



# 



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792 8:9 NORTH CAROLINA REGISTER August 2, 1993 



NORTH CAROLINA ADMEVISTRATIVE CODE 



The full publication consists of 53 volumes, totaling in excess of 15,000 pages. It is supplemented monthly 
with replacement pages. A one year subscription to the full publication including supplements can be 
purchased for seven hundred and fifty dollars ($750.00). Individual volumes may also be purchased with 
supplement service. Renewal subscriptions for supplements to the initial publication are available at 
one-half the new subscription price. 



PRICE LIST FOR THE SUBSCRIPTION YEAR 



Volume 


Title 


Chapter 


Subject 


New Total 
Subscription* Quantity Price 


1 -53 


Full Code 

1 

2 

2 

3 

4 

4 

5 

5 

6 

7 

8 

9 
10 
10 
10 

10 
10 
10 
10 
10 
10 
10 
10 
10 
10 
10 
10 
10 

11 

12 
13 
13 
13 
14A 

15A 
15A 
15A 
15A 
15A 


1 - 38 
1 -24 
25 - 52 
1 -4 
1 -2 
3 - 20 
1 - 2 
3 -4 
1 -4 
1 - 12 
1 -9 
1 -4 

I -2 
3A - 3K 
3L- 3R 

3S- 3W 

4-6 

7 

8 -9 

10 

II - 14 
15 - 17 
18 

19 - 30 

31 - 33 

34 -41 

42 

43 - 51 

1 - 19 

1 - 12 

1 - 6 

7 

8 - 16 

1 - 11 

1 - 2 
3 -6 
7 

8 - 9 
10 


All titles 
Administration 
Agriculture 
Agriculture 
Auditor 

ECD (includes ABC) 
ECD 

Correction 
Correction 
Council of State 
Cultural Resources 
Elections 

Govemor/Lt. Govemo 
Human Resources 
Human Resources 
Human Resources 
(includes CON) 
Human Resources 
Human Resources 
Human Resources 
Human Resources 
Human Resources 
Human Resources 
Human Resources 
Human Resources 
Human Resources 
Human Resources 
Human Resources 
Human Resources 
Human Resources 
Insurance 
Justice 
Labor 
OSHA 
Labor 

Crime Control and 
Public Safety 
EHNR (includes EMC 
EHNR 

Coastal Management 
EHNR 
Wildlife 


$750.00 




1 


90.00 




2 


75.00 




3 


75.00 




4 


10.00 




5 


45.00 




6 


90.00 




7 


60.00 




8 


30.00 




9 


60.00 




10 


10.00 




11 


r 45.00 




12 


30.00 




13 


90.00 




14 


45.00 




15 


30.00 




16 


30.00 




17 


30.00 




18 


30.00 




19 


30.00 




20 


60.00 




21 


45.00 




22 


75.00 




23 


90.00 




24 


30.00 




25 


60.00 




26 


45.00 




27 


90.00 




28 


90.00 




29 


90.00 




30 


30.00 




31 


45.00 




32 


45.00 




33 


45.00 




34 


) 90.00 




35 


45.00 




36 


45.00 




37 


30.00 




38 


45.00 








Continued 



New Total 

Volume Title Chapter Subject Subscription* Quantity Price 

EHNR 90.00 

EHNR 

(includes Breathalizer) 75.00 

Education 30.00 

Revenue 75.00 

Revenue 60.00 

Secretary of State 30.00 

Transportation 90.00 

Treasurer 45.00 

Licensing Boards 75.00 

Licensing Boards 75.00 

Licensing Boards 

Administrative Procedures75.00 

Community Colleges 10.00 

Independent Agencies 10.00 

State Personnel 60.00 

Administrative Hearings 10.00 



39 


15A 


11 - 18 


40 


15A 


19- 26 


41 


16 


1 - 6 


42 


17 


1 - 6 


43 


17 


7- 11 


44 


18 


1 - 8 


45 


19A 


1 - 6 


46 


20 


1 - 9 


47 


21 


1 - 16 


48 


21 


17 - 37 


49 


21 


38 - 70 




22 


1 - 2 


50 


23 


1 -2 


51 


24 


1 - 3 


52 


25 




53 


26 


1 - 4 



Subtotal 
(North Carolina subscribers add 6% sales tax) 

Total 



(Make checks payable to Office of Administrative Hearings.) 



This price includes the title in its current form plus supplementation for the subscription year. 



i 



MAIL TO: 



OFFICE OF ADMINISTRATIVE HEARINGS 

POST OFFICE DRAWER 27447 
RALEIGH, NORTH CAROLINA 27611-7447 







Ln'L-\l9LZ BU!ioJB3 qjJON 'qSiaiBH 
LPPLZ ■i3A\BJa O d 

sSuuBSH 3Apejjsiuiuipv Jo aayjo 



HHHH 
dWVlS 
HDVld 



FOLD HERE 



NORTH CAROLINA REGISTER 
ORDER FORM 



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